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Driving Equity: The U.S. Department of Transportation's Disadvantaged Business Enterprise Program, House hearing transcript (September 23, 2020), GovInfo CHRG-116hhrg43413, PDF

Summary

The House Committee on Transportation and Infrastructure met for remote hearing 116–64, “Driving Equity: The U.S. Department of Transportation’s Disadvantaged Business Enterprise Program,” on September 23, 2020; this is the Government Publishing Office PDF. Seven witnesses testified: Evalynn Williams, Geri E. Boyer, Mary T. Lerdahl, Farad Ali, Sandy-Michael E. McDonald, Sandra Norman and Jon Wainwright, Ph.D. Background material in the hearing volume explains that Congress set a national 10 percent participation goal for firms certified as DBEs in surface transportation and airport programs, and that recipients must base their own goals on evidence of ready, willing and able DBEs. Submissions include a letter of October 7, 2020 from the Associated General Contractors of America.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

                                                                  DRIVING EQUITY: THE U.S. DEPARTMENT OF
                                                                    TRANSPORTATION’S DISADVANTAGED BUSINESS
                                                                    ENTERPRISE PROGRAM


                                                                                                               (116–64)


                                                                                         REMOTE HEARING
                                                                                                              BEFORE THE


                                                                                     COMMITTEE ON
                                                                                 TRANSPORTATION AND
                                                                                   INFRASTRUCTURE
                                                                               HOUSE OF REPRESENTATIVES
                                                                                     ONE HUNDRED SIXTEENTH CONGRESS
                                                                                                            SECOND SESSION


                                                                                                       SEPTEMBER 23, 2020


                                                                                                  Printed for the use of the
                                                                                        Committee on Transportation and Infrastructure




                                                                                                                (
                                                                  Available online at: https://www.govinfo.gov/committee/house-transportation?path=/
                                                                              browsecommittee/chamber/house/committee/transportation

                                                                                                U.S. GOVERNMENT PUBLISHING OFFICE
                                                                        43–413 PDF                          WASHINGTON : 2021




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                                                                            COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
                                                                                             PETER A. DEFAZIO, Oregon, Chair
                                                                  ELEANOR HOLMES NORTON,                    SAM GRAVES, Missouri
                                                                    District of Columbia                    DON YOUNG, Alaska
                                                                  EDDIE BERNICE JOHNSON, Texas              ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas
                                                                  RICK LARSEN, Washington                   BOB GIBBS, Ohio
                                                                  GRACE F. NAPOLITANO, California           DANIEL WEBSTER, Florida
                                                                  DANIEL LIPINSKI, Illinois                 THOMAS MASSIE, Kentucky
                                                                  STEVE COHEN, Tennessee                    SCOTT PERRY, Pennsylvania
                                                                  ALBIO SIRES, New Jersey                   RODNEY DAVIS, Illinois
                                                                  JOHN GARAMENDI, California                ROB WOODALL, Georgia
                                                                  HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia JOHN KATKO, New York
                                                                  ANDRÉ CARSON, Indiana                    BRIAN BABIN, Texas
                                                                  DINA TITUS, Nevada                        GARRET GRAVES, Louisiana
                                                                  SEAN PATRICK MALONEY, New York            DAVID ROUZER, North Carolina
                                                                  JARED HUFFMAN, California                 MIKE BOST, Illinois
                                                                  JULIA BROWNLEY, California                RANDY K. WEBER, SR., Texas
                                                                  FREDERICA S. WILSON, Florida              DOUG LAMALFA, California
                                                                  DONALD M. PAYNE, JR., New Jersey          BRUCE WESTERMAN, Arkansas
                                                                  ALAN S. LOWENTHAL, California             LLOYD SMUCKER, Pennsylvania
                                                                  MARK DESAULNIER, California               PAUL MITCHELL, Michigan
                                                                  STACEY E. PLASKETT, Virgin Islands        BRIAN J. MAST, Florida
                                                                  STEPHEN F. LYNCH, Massachusetts           MIKE GALLAGHER, Wisconsin
                                                                  SALUD O. CARBAJAL, California, Vice Chair GARY J. PALMER, Alabama
                                                                  ANTHONY G. BROWN, Maryland                BRIAN K. FITZPATRICK, Pennsylvania
                                                                  ADRIANO ESPAILLAT, New York               JENNIFFER GONZÁLEZ-COLÓN,
                                                                  TOM MALINOWSKI, New Jersey                  Puerto Rico
                                                                  GREG STANTON, Arizona                     TROY BALDERSON, Ohio
                                                                  DEBBIE MUCARSEL-POWELL, Florida           ROSS SPANO, Florida
                                                                  LIZZIE FLETCHER, Texas                    PETE STAUBER, Minnesota
                                                                  COLIN Z. ALLRED, Texas                    CAROL D. MILLER, West Virginia
                                                                  SHARICE DAVIDS, Kansas                    GREG PENCE, Indiana
                                                                  ABBY FINKENAUER, Iowa                     MIKE GARCIA, California
                                                                  JESÚS G. ‘‘CHUY’’ GARCÍA, Illinois
                                                                  ANTONIO DELGADO, New York
                                                                  CHRIS PAPPAS, New Hampshire
                                                                  ANGIE CRAIG, Minnesota
                                                                  HARLEY ROUDA, California
                                                                  CONOR LAMB, Pennsylvania




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                                                                                                                   CONTENTS                                                                Page

                                                                  Summary of Subject Matter ....................................................................................             v

                                                                                       STATEMENTS OF MEMBERS OF THE COMMITTEE
                                                                  Hon. Peter A. DeFazio, a Representative in Congress from the State of Or-
                                                                   egon, and Chairman, Committee on Transportation and Infrastructure:
                                                                      Opening statement ...........................................................................................          1
                                                                      Prepared statement ..........................................................................................          4
                                                                  Hon. Sam Graves, a Representative in Congress from the State of Missouri,
                                                                   and Ranking Member, Committee on Transportation and Infrastructure:
                                                                      Opening statement ...........................................................................................          4
                                                                      Prepared statement ..........................................................................................          5
                                                                  Hon. Eleanor Holmes Norton, a Delegate in Congress from the District of
                                                                   Columbia, and Chairwoman, Subcommittee on Highways and Transit:
                                                                      Opening statement ...........................................................................................          5
                                                                      Prepared statement ..........................................................................................          6
                                                                  Hon. Rodney Davis, a Representative in Congress from the State of Illinois,
                                                                   and Ranking Member, Subcommittee on Highways and Transit:
                                                                      Opening statement ...........................................................................................          7
                                                                      Prepared statement ..........................................................................................          8
                                                                  Hon. Eddie Bernice Johnson, a Representative in Congress from the State
                                                                   of Texas, prepared statement ..............................................................................             133
                                                                  Hon. Rick Larsen, a Representative in Congress from the State of Wash-
                                                                   ington, and Chairman, Subcommittee on Aviation, prepared statement ........                                             133

                                                                                                                       WITNESSES
                                                                  Evalynn Williams, President and Chief Executive Officer, Dikita Enterprises,
                                                                    Inc., on behalf of the Conference of Minority Transportation Officials:
                                                                       Oral statement ..................................................................................................    10
                                                                       Prepared statement ..........................................................................................        11
                                                                  Geri E. Boyer, P.E., President, Kaskaskia Engineering Group, LLC, on behalf
                                                                    of the American Council of Engineering Companies:
                                                                       Oral statement ..................................................................................................    14
                                                                       Prepared statement ..........................................................................................        16
                                                                  Mary T. Lerdahl, President, Emerald Consulting Services, LLC:
                                                                       Oral statement ..................................................................................................    22
                                                                       Prepared statement ..........................................................................................        24
                                                                  Farad Ali, Chairman, Government Affairs Committee, Airport Minority Advi-
                                                                    sory Council:
                                                                       Oral statement ..................................................................................................    27
                                                                       Prepared statement ..........................................................................................        29
                                                                  Sandy-Michael E. McDonald, Director, Office of Economic and Small Business
                                                                    Development, Broward County, Florida:
                                                                       Oral statement ..................................................................................................    32
                                                                       Prepared statement ..........................................................................................        33
                                                                  Sandra D. Norman, Division Administrator, Civil Rights, Virginia Depart-
                                                                    ment of Transportation:
                                                                       Oral statement ..................................................................................................    36
                                                                       Prepared statement ..........................................................................................        37
                                                                  Jon S. Wainwright, Ph.D., Affiliated Consultant, NERA Economic Consulting:
                                                                       Oral statement ..................................................................................................    38
                                                                       Prepared statement ..........................................................................................        40


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                                                                                                                                  iv
                                                                                                                                                                                                 Page
                                                                                                       SUBMISSIONS FOR THE RECORD
                                                                  Submissions for the Record by Hon. Peter A. DeFazio:
                                                                      Ten Disparity Studies ......................................................................................                 3
                                                                      Letter of June 25, 2020, from Geri E. Boyer, P.E., President, Kaskaskia
                                                                        Engineering Group, LLC ..............................................................................                     95
                                                                      Letter of July 13, 2020, from Lawrence T. Green, President, Divine Ce-
                                                                        ment, Inc. .......................................................................................................       134
                                                                      Letter of July 15, 2020, from Linda Moen, P.E., LEED BD+C, President
                                                                        and Managing Member, EFK Moen ............................................................                               136
                                                                      Letter of July 1, 2020, from Carla M. Williams, DBELO, Director of
                                                                        Community and Business Engagement, Hillsborough Area Regional
                                                                        Transit Authority, and President, COMTO Central Florida Chapter ......                                                   137
                                                                      Letter of September 19, 2020, from Colette Holt, Colette Holt & Associ-
                                                                        ates .................................................................................................................   138
                                                                      Letter of June 16, 2020, from Katherine M. Cloonen, President, JK Steel
                                                                        Erectors, Inc. .................................................................................................         142
                                                                      Letter of June 24, 2020, from Carol L. Kwan, Carol Kwan Consulting
                                                                        LLC ................................................................................................................     143
                                                                      Letter of May 26, 2020, from Sarah Imberman, S. Levy Foods ...................                                             144
                                                                      Letter of June 17, 2020, from Constance Macolino, President, Puget
                                                                        Sound Steel Co., Inc. .....................................................................................              144
                                                                      Letter of September 9, 2020, from Robert S. Bright, Founder and Presi-
                                                                        dent, Talson Solutions, LLC .........................................................................                    145
                                                                      Letter of September 8, 2020, from Lorenzo Thompson, Principal, Thomp-
                                                                        son Civil, LLC ...............................................................................................           146
                                                                      Letter of July 1, 2020, from Katey Doman, President, TyE Bar LLC .........                                                 147
                                                                      Statement of Joann Payne, President, Women First National Legislative
                                                                        Committee .....................................................................................................          147
                                                                  Submissions for the Record by Hon. Sam Graves of Missouri:
                                                                      Statement of the American Road & Transportation Builders Association ..                                                    151
                                                                      Letter of October 7, 2020, from James V. Christianson, Vice President,
                                                                        Government Relations, Associated General Contractors of America ........                                                 155
                                                                  Statement of the Airport Restaurant and Retail Association, Submitted for
                                                                    the Record by Hon. Rick Larsen .........................................................................                     159

                                                                                                                           APPENDIX
                                                                  Question from Hon. Troy Balderson to Sandy-Michael E. McDonald, Director,
                                                                   Office of Economic and Small Business Development, Broward County,
                                                                   Florida ...................................................................................................................   163
                                                                  Questions from Hon. Peter A. DeFazio to Jon S. Wainwright, Ph.D., Affiliated
                                                                   Consultant, NERA Economic Consulting ...........................................................                              164




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                                                                                                            SEPTEMBER 18, 2020
                                                                       SUMMARY OF SUBJECT MATTER
                                                                       TO:      Members, Committee on Transportation and Infrastructure
                                                                       FROM:    Staff, Committee on Transportation and Infrastructure
                                                                       SUBJECT: Hearing on ‘‘Driving Equity: The U.S. Department of Transpor-
                                                                                tation’s Disadvantaged Business Enterprise Program’’

                                                                                                      PURPOSE OF HEARING
                                                                    The Committee on Transportation and Infrastructure will meet on Wednesday,
                                                                  September 23, 2020, at 10:00 am, in room 2167 Rayburn House Office Building and
                                                                  remotely via Cisco WebEx, to receive testimony regarding ‘‘Driving Equity: The U.S.
                                                                  Department of Transportation’s Disadvantaged Business Enterprise Program.’’ The
                                                                  Committee will hear from representatives of the Virginia Department of Transpor-
                                                                  tation; Broward County, Florida, Office of Small Business and Economic Develop-
                                                                  ment; the Airport Minority Advisory Council (AMAC); the Conference of Minority
                                                                  Transportation Officials (COMTO); Emerald Consulting Services; NERA Economic
                                                                  Consulting; and the American Council of Engineering Companies (ACEC).
                                                                                                             BACKGROUND
                                                                    The U.S. Department of Transportation’s (DOT) Disadvantaged Business Enter-
                                                                  prise (DBE) Program was established to remedy discrimination against minority
                                                                  and women-owned businesses.1 The DBE program seeks to ensure those businesses
                                                                  are provided equal opportunities to compete for contracts assisted by certain DOT
                                                                  funds administered by the Federal Highway Administration (FHWA), the Federal
                                                                  Aviation Administration (FAA), the Federal Transit Administration (FTA), and the
                                                                  National Highway Traffic Safety Administration (NHTSA).2
                                                                    First established by Federal regulation in 1980 as a minority and women’s busi-
                                                                  ness enterprise program, the DBE program was later statutorily authorized for sur-
                                                                  face transportation programs in 1983 by the Surface Transportation Assistance Act
                                                                  of 1982 (P.L. 97–424) to aid small businesses owned and controlled by minorities
                                                                  facing historic and continuing discriminatory barriers to participation in the high-
                                                                  ways and transit programs.3
                                                                    DBE programs for women-owned businesses and the FAA’s airport DBE program
                                                                  were primarily implemented by regulation until Congress passed the Surface Trans-
                                                                  portation and Uniform Relocation Assistance Act of 1987 (P.L. 100–17) and the Air-
                                                                  port and Airway Safety and Capacity Expansion Act of 1987 (P.L. 100–223), which
                                                                  expanded statutory authorization for surface and airport transportation construction

                                                                    1 DOT Office of Civil Rights. Disadvantaged Business Enterprise (DBE) Program. US Depart-
                                                                  ment of Transportation. Retrieved September 18, 2020, from https://www.transportation.gov/
                                                                  civil-rights/disadvantaged-business-enterprise
                                                                    2 49 CFR 26.3.
                                                                    3 DOT Office of Civil Rights. Disadvantaged Business Enterprise (DBE) Program.


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                                                                                                                        vi
                                                                  DBE programs to include women-controlled small businesses and codified the air-
                                                                  port DBE program, respectively. The Airport and Airway Safety and Capacity Ex-
                                                                  pansion Act also established a separate Airport Concession Disadvantaged Business
                                                                  Enterprise (ACDBE) Program administered by the FAA for airport concessions and
                                                                  related contracts.4 Since P.L. 100–223 codified the airport construction DBE pro-
                                                                  gram and the ACBDE program, these programs do not require statutory reauthor-
                                                                  ization in the same manner as surface transportation DBE programs.
                                                                    Though not codified like the airport programs, Congress has regularly reauthor-
                                                                  ized the DBE program for highways and transit in successive surface transportation
                                                                  bills, most recently with the enactment of the Fixing America’s Surface Transpor-
                                                                  tation (FAST) Act (P.L. 114–94). In addition, the U.S. House of Representatives
                                                                  passed H.R. 2, the Moving Forward Act, which aims to reauthorize the surface DBE
                                                                  program with some amendments.
                                                                    Both the surface DBE program and the aviation construction DBE program are
                                                                  implemented pursuant to regulations established under 49 CFR part 26. The
                                                                  ACDBE program is implemented pursuant to regulations established under 49 CFR
                                                                  part 23.
                                                                  I. WHAT IS A DBE?
                                                                     For eligibility purposes, a DBE is defined as a small, for-profit business where so-
                                                                  cially and economically disadvantaged individuals (1) own at least 51 percent of the
                                                                  economic interests of the entity, and (2) control and manage the business operations
                                                                  of the firm.5 A firm and its minority and/or women owners seeking certification as
                                                                  a DBE must meet: (1) an ownership and control test, (2) a personal net worth test,
                                                                  and (3) a size standard test, requirements for which are described in regulation.6
                                                                     To be regarded as socially disadvantaged means to face historic and ongoing dis-
                                                                  crimination, such as racial or ethnic prejudice or cultural bias due to membership
                                                                  in a particular group.7 Consistent with DOT implementing regulations, minorities
                                                                  and women are presumed to be socially disadvantaged (although that presumption
                                                                  is rebuttable).8 Others may qualify as socially disadvantaged on a case-by-case
                                                                  basis.9
                                                                     To be regarded as economically disadvantaged, an individual must, among other
                                                                  things, have a personal net worth that does not exceed $1.32 million, excluding the
                                                                  equity in the individual’s primary residence and the value of their ownership inter-
                                                                  est in the firm seeking certification.10
                                                                     To meet size standards for DBE eligibility and be regarded as a small business
                                                                  in the surface transportation sector, a business must meet the qualifications of a
                                                                  small business defined by the Small Business Administration (SBA) in accordance
                                                                  with the North American Industry Classification System (NAICS) codes relevant to
                                                                  the business and as defined by the annual gross receipts or employee number caps
                                                                  outlined for each industry code.11 In addition, the small business must not have av-
                                                                  erage annual gross receipts over the firm’s previous three fiscal years in excess of
                                                                  $23.98 million, regardless of the relevant NAICS code qualification.12
                                                                     Until the FAA Reauthorization Act of 2018 (P.L. 115–254), size standards for DBE
                                                                  eligibility in the aviation construction sector reflected the same requirements as the
                                                                  surface DBE program. With that Act, however, Congress removed the separate
                                                                  $23.98 million gross receipts cap requirement for businesses in the aviation con-
                                                                  struction sector, tying eligibility requirements directly to the SBA’s definitions of
                                                                  small businesses.13
                                                                     In addition, H.R. 2, the Moving Forward Act, proposes to remove the $23.98 mil-
                                                                  lion gross receipts cap from the surface transportation DBE program as well, so the
                                                                  SBA would determine business size standards for DBEs. This proposed change
                                                                  would result in a uniform standard for determining small business size for both the
                                                                  surface and aviation construction DBE programs, set by the SBA.
                                                                     To be certified under the FAA’s ACDBE program, a business must meet different
                                                                  size standards reflective of the diversity of industries present in airport conces-
                                                                  sions.14

                                                                       4 Id.
                                                                       5 49 CFR 26.5.
                                                                       6 49 CFR 26; 49 CFR 23.
                                                                       7 13 CFR 124.103.
                                                                       8 49 CFR 26.67(a) and (b).
                                                                       9 49 CFR 26.67(d).
                                                                       10 49 CFR 26.67(a).
                                                                       11 49 CFR 26.65(a).
                                                                       12 49 CFR 26.65(b).
                                                                       13 49 USC §47113(a)(1).
                                                                       14 49 CFR 23.33.




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                                                                                                                    vii
                                                                  II. HOW ARE FIRMS CERTIFIED?
                                                                     Recipients of DOT financial assistance (such as state departments of transpor-
                                                                  tation, local governments, transit agencies, and port authorities) are required to es-
                                                                  tablish a Unified Certification Program (UCP) in their state.15 The purpose of a
                                                                  UCP is to ensure DBEs and applicants (including airport concessionaires) will have
                                                                  ‘‘one-stop shopping’’ on all certification matters with respect to these recipients. If
                                                                  a business wants to be certified as a DBE, it must submit an application to the state
                                                                  UCP for approval.16 Determinations as to whether a firm meets the DBE criteria
                                                                  are made by the UCP using various means, including on-site visits, personal inter-
                                                                  views, reviews of licenses, stock ownership, equipment, bonding capacity, work com-
                                                                  pleted, résumé of principal owners, financial capacity, and type of work preferred.17
                                                                  Once a DBE is certified through the UCP, that certification must be honored by all
                                                                  recipients of DOT funds within the state.18
                                                                     While some state UCPs maintain certification reciprocity agreements with other
                                                                  state UCPs, each state exercises its own discretion as to whether it will accept cer-
                                                                  tification from other states.19 DBEs wishing to do business in multiple states must
                                                                  generally recertify with all applicable UCPs.20
                                                                  III. HOW DOES THE DBE PROGRAM WORK?
                                                                     Under the authorizing statues for the various DBE programs, Congress set a na-
                                                                  tional 10 percent participation goal for firms certified as DBEs in surface transpor-
                                                                  tation programs, in airport federally assisted contracting (i.e., procurement, con-
                                                                  struction, or professional services contracts), and in airport concessions.21
                                                                     DOT regulations require recipients of federal financial assistance that anticipate
                                                                  awarding prime contracts of more than $250,000 to establish an annual aspirational
                                                                  DBE participation goal that reflects what DBE participation in federally-assisted
                                                                  projects would look like in the absence of discrimination.22 Recipients must base
                                                                  their goals on how to achieve a level playing field in their individual programs, re-
                                                                  gardless of the 10 percent national goal.23 These goals must be based on demon-
                                                                  strable evidence of the availability of ready, willing, and able DBEs relative to the
                                                                  DOT-assisted contracts that will be available that fiscal year (FY).24
                                                                     The two-step process for goal-setting in accordance with this demonstrable evi-
                                                                  dence is laid out in 49 CFR 26.45. Demonstrable evidence may come from several
                                                                  sources, including, but not limited to: census data, established DBE directories, past
                                                                  bidder lists, determinations by other DOT recipients with substantially similar mar-
                                                                  ket areas, and statistical DBE availability and disparity studies covering recipients’
                                                                  market areas.25 The recipient of DOT funds must establish its goal for a three-year
                                                                  period and submit that goal with the determining methodology to the FAA, FHWA,
                                                                  or FTA for review and approval.26
                                                                     It is important to note that a recipient’s goal is aspirational only; quotas and set-
                                                                  asides are generally not permitted. In addition, DOT does not assess penalties for
                                                                  not meeting DBE goals as long as good faith efforts are demonstrably made.27 Fur-
                                                                  thermore, recipients are required to use race-neutral means to meet as much of
                                                                  their overall goal as possible (in this context, ‘‘race-neutral’’ refers to both race and
                                                                  gender, i.e., without application of any criteria favoring DBEs over non-DBEs).28 Ex-
                                                                  amples of ‘‘race-neutral means’’ include: providing assistance to small businesses in
                                                                  overcoming issues such as the inability to obtain bonding or financing; unbundling
                                                                  large contracts to make them more accessible to small businesses; informational and
                                                                  communication programs on contracting procedures and specific contract opportuni-
                                                                  ties; and other business support services.29

                                                                       15 49 CFR 26.81.
                                                                       16 Id.
                                                                       17 49 CFR 26.83(c).
                                                                       18 49 CFR 26.81(b).
                                                                       19 49 CFR 26.81(e) and (f).
                                                                       20 49 CFR 26.85.
                                                                       21 See P.L. 114–94 §1101(b)(3) for surface, and 49 USC §47113(b) for aviation.
                                                                    22 49 CFR 26.21(a)(1) requires all FHWA ‘‘primary recipients’’ of Federal financial assistance
                                                                  to establish a DBE program, regardless of contract size. Subrecipients are governed by the
                                                                  prime recipient’s DBE program.
                                                                    23 49 CFR 26.45(b).
                                                                    24 49 CFR 26.45.
                                                                    25 49 CFR 26.45.
                                                                    26 Id.
                                                                    27 49 CFR 26.47.
                                                                    28 See 49 CFR 26.5 and 49 CFR 26.51.
                                                                    29 49 CFR 26.51(b).




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                                                                     If a recipient is unable to meet its overall DBE participation goal through race-
                                                                  neutral means, then a recipient must establish contract goals (which are deemed
                                                                  race-conscious) for DBE participation.30 This means the recipient has determined
                                                                  that, without the use of race-conscious measures, a level playing field for DBE busi-
                                                                  nesses could not be achieved. Contract goals require that prime contractors em-
                                                                  ployed by DOT recipients make good-faith efforts to award a certain percentage of
                                                                  their total contract work to certified DBEs in order to meet the race-conscious por-
                                                                  tion of their overall DBE participation goal.31 There are no Federally-mandated pen-
                                                                  alties for failing to meet these goals as long as good-faith efforts are made.
                                                                     Importantly, as discussed further in section VI below, states under the jurisdiction
                                                                  of the Ninth Circuit Court of Appeals must use evidence from statistical disparity
                                                                  studies during their goal-setting process before DOT recipients in those states are
                                                                  allowed to set race-conscious goals for DBE participation.32
                                                                  V. WHAT MUST RECIPIENTS REPORT TO DOT MODAL ADMINISTRATIONS?
                                                                     Recipients of DOT funds must maintain accurate records of data related to the
                                                                  participation of DBEs on projects and report these records regularly to DOT modal
                                                                  administrations.33 FHWA and FTA recipients must submit a uniform report of DBE
                                                                  contract awards, commitments, and payments twice per FY, and FAA recipients
                                                                  must submit such a report once per FY.34
                                                                     These uniform reports break down awards, commitments, and payments of federal
                                                                  financial assistance in terms of, among other things: (1) number of contracts award-
                                                                  ed to DBEs as a percentage of total contracts, (2) dollar amount of contracts award-
                                                                  ed to DBEs as a percentage of total contract dollars, (3) a breakdown of number of
                                                                  contracts awarded to DBEs disaggregated by race, gender, or other applicable cat-
                                                                  egories, and (4) a breakdown of contract dollar amounts awarded to DBEs
                                                                  disaggregated by race, gender, or other applicable categories.35
                                                                  VI. HOW HAS THE DBE PROGRAM BEEN REVIEWED BY THE COURTS?
                                                                    Numerous court cases dealing with the DOT’s DBE program or questions of race
                                                                  or gender-based discrimination have affected the implementation of the program
                                                                  over time. Some have involved the program directly and others indirectly. Below is
                                                                  a brief overview of a few of the most relevant cases.
                                                                  a. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)
                                                                    In 1989, the United States Supreme Court held in City of Richmond v. J.A.
                                                                  Croson Co. (Croson) that a Richmond, Virginia, set-aside program giving preference
                                                                  to minority businesses in the awarding of municipal contracts was unconstitutional
                                                                  on the grounds that the city had failed to adequately demonstrate its compelling in-
                                                                  terest in establishing such a program on the basis of relevant, measurable evi-
                                                                  dence.36 With this holding, the Court established an outline of what would con-
                                                                  stitute a permissible program for race-based awarding of public contracts by requir-
                                                                  ing that such programs be subject to a ‘‘strict scrutiny’’ standard (the most stringent
                                                                  standard) of judicial review.37 Under the strict scrutiny standard, a public entity
                                                                  must prove: (1) that it has a ‘‘compelling interest’’ in remedying discrimination
                                                                  based on ‘‘a strong basis in evidence,’’ and (2) that the measures employed to rem-
                                                                  edy such discrimination are ‘‘narrowly tailored’’ to the scope of the evidence pre-
                                                                  sented.38
                                                                  b. Adarand v. Pena, 515 U.S. 200 (1995)
                                                                     In 1995, in Adarand v. Pena (Adarand), a case dealing with DOT funds expended
                                                                  in the state of Colorado, the United States Supreme Court held that the strict scru-
                                                                  tiny standard previously applied in Croson applies to the Federal government in the
                                                                  establishment of race-based programs.39 While the Court did not specifically deter-
                                                                  mine the constitutionality of DOT’s DBE program in Adarand, the Administration
                                                                  undertook a review of Federal programs, including the DBE program, that used race
                                                                  or gender as a basis for decision-making to ensure compliance with the strict scru-

                                                                       30 49 CFR 26.51(d).
                                                                       31 49 CFR 26.51(e)(2).
                                                                       32 Case No. C00–5204 RBL (W.D. Wash. June 23, 2006)
                                                                       33 49 CFR 26.11.
                                                                       34 Id.
                                                                       35 49 CFR 26, Appendix B.
                                                                       36 488 U.S. 469 (1989).
                                                                       37 Id.
                                                                       38 Id.
                                                                       39 515 U.S. 200 (1995).




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                                                                                                                      ix
                                                                  tiny standard.40 In 1998, Congress reauthorized the surface DBE programs with the
                                                                  Transportation Equity Act for the 21st Century (TEA–21, P.L. 105–178). In 1999,
                                                                  the DOT finalized new rules for both the surface and aviation DBE programs to en-
                                                                  sure compliance with Adarand, and new rules for the ACDBE program were issued
                                                                  in 2005.41 Since the new rules were adopted, courts considering the constitutionality
                                                                  of the DBE program have consistently upheld the program against facial chal-
                                                                  lenges.42
                                                                  c. Western States Paving Co, Inc. v. Washington State Department of Transportation,
                                                                                  Case No. C00–5204 RBL (W.D. Wash. June 23, 2006)
                                                                     In 2005, the U.S. Court of Appeals for the Ninth Circuit decided in Western States
                                                                  Paving Co, Inc. v. Washington State Department of Transportation (Western States)
                                                                  that DOT’s DBE program was facially constitutional, however was unconstitutional
                                                                  ‘‘as applied’’ by Washington State’s DOT (WashDOT), because WashDOT had failed
                                                                  to meet the strict scrutiny requirement that the program be narrowly tailored.43
                                                                  The court held WashDOT had not established with sufficient statistical evidence
                                                                  that it needed race-conscious measures to meet WashDOT’s DBE participation
                                                                  goals.44 In response to this ruling, the DOT advised all states within the jurisdiction
                                                                  of the Ninth Circuit Court to implement only race-neutral program goals until sta-
                                                                  tistical disparity studies could be completed to meet strict scrutiny standards for
                                                                  race-conscious contracting goals.45
                                                                  VII. WHAT ARE DISPARITY STUDIES AND HOW DO THEY IDENTIFY DISCRIMINATION IN
                                                                                  MARKETS?
                                                                     Disparity studies are complex statistical analyses of relevant marketplaces for
                                                                  Federal contracts. Study methodology can vary, but studies generally aim to present
                                                                  policymakers with a ‘‘disparity ratio,’’ the relative percentage of Federal contract
                                                                  dollars awarded to minority groups and women in comparison with the percentage
                                                                  such groups would be expected to receive in a marketplace where discrimination is
                                                                  not present.46 Disparity studies conducted for DOT funding recipients may include,
                                                                  among other factors, analysis such as: (1) an empirical determination of the appro-
                                                                  priate market area and appropriate product markets relevant to the recipients con-
                                                                  tracting activity; (2) an estimate of the fraction of DBEs compared with non-DBEs
                                                                  in the relevant market area and product markets (DBE availability); (3) an estimate
                                                                  of the percentage of the recipient’s contract dollars earned by DBEs (DBE utiliza-
                                                                  tion); (4) a statistical comparison of DBE availability and utilization; (5) econometric
                                                                  analysis of the relative success of DBEs in the recipients public sector market as
                                                                  well as the corresponding private sector market; and (6) econometric analysis of
                                                                  DBE access to capital in the relevant marketplace.
                                                                     As noted, recipients of DOT funds may use, and recipients under the jurisdiction
                                                                  of the Ninth Circuit Court generally must use pursuant to Western States, statistical
                                                                  disparity studies to aid in the establishment of goals for DBE participation on Fed-
                                                                  eral-aid contracts. Since the Croson decision, many public agencies across the coun-
                                                                  try, including DOT funding recipients, have relied upon disparity studies to estab-
                                                                  lish accurate, empirically-based goals for minority participation in public contracting
                                                                  programs, including the DOT’s DBE program.

                                                                    40 See Affirmative Action Review Report to the President. Retrieved September 18, 2020, from
                                                                  https://clintonwhitehouse2.archives.gov/WH/EOP/OP/html/aa/aa-index.html
                                                                    41 See 54 Fed. Reg. 5,096 (February 2, 1999), and 70 Fed. Reg. 14,496 (March 22, 2005)
                                                                    42 See Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000), cert. granted, 532
                                                                  U.S. 941, then dismissed as improvidently granted, 534 U.S. 103 (2001) (Adarand VII);
                                                                  Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, and Gross Seed Co. v. Ne-
                                                                  braska Department of Roads, 345 F.3d. 964 (8th Cir. 2003), cert. denied, 541 U.S. 1041 (2004);
                                                                  Western States Paving Co., Inc. v. Washington Department of Transportation, 407 F.3d 983 (9th
                                                                  Cir. 2005), cert. denied, 546 U.S. 1170 (2006); Northern Contracting, Inc. v. Illinois Department
                                                                  of Transportation, 473 F.3d 715 (7th Cir. 2007) (Northern Contracting III); Orion Insurance
                                                                  Group v. Washington OMWBE, U.S. DOT, 2018 WL 6695345 (9th Cir. 2018), cert. denied, June
                                                                  24, 2019.
                                                                    43 Case No. C00–5204 RBL (W.D. Wash. June 23, 2006).
                                                                    44 Id.
                                                                    45 DOT Office of Civil Rights. Western States Paving Company Case Q&A. US Department of
                                                                  Transportation. Retrieved September 18, 2020 from https://www.transportation.gov/osdbu/dis-
                                                                  advantaged-business-enterprise/western-states-paving-company-case-q-and-a
                                                                    46 National Academies of Sciences, Engineering, and Medicine, Transportation Research
                                                                  Board, & National Cooperative Highway Research Program. (2010). Guidelines for Conducting
                                                                  a Disparity and Availability Study for the Federal DBE Program. The National Academies Press.
                                                                  Retrieved September 18, 2020, from https://www.nap.edu/catalog/14346/guidelines-for-con-
                                                                  ducting-a-disparity-and-availability-study-for-the-federal-dbe-program




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                                                                                                                       x
                                                                                                              WITNESSES
                                                                       • Mr. Farad Ali, Airport Minority Advisory Council
                                                                       • Ms. Geri E. Boyer, P.E., American Council of Engineering Companies
                                                                       • Ms. Mary Lerdahl, Emerald Consulting Services
                                                                       • Mr. Sandy-Michael McDonald, Broward County, Florida, Office of Economic and
                                                                         Small Business Development
                                                                       • Ms. Sandra Norman, Virginia Department of Transportation
                                                                       • Mr. Jon Wainwright, Ph.D., NERA Economic Consulting
                                                                       • Ms. Evalynn Williams, Conference of Minority Transportation Officials




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                                                                  DRIVING EQUITY: THE U.S. DEPARTMENT OF
                                                                   TRANSPORTATION’S DISADVANTAGED BUSI-
                                                                   NESS ENTERPRISE PROGRAM

                                                                                         WEDNESDAY, SEPTEMBER 23, 2020

                                                                                          HOUSE OF REPRESENTATIVES,
                                                                    COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE,
                                                                                                              WASHINGTON, DC.
                                                                    The committee met, pursuant to call, at 10:01 a.m., in room 2167
                                                                  Rayburn House Office Building and via Cisco Webex, Hon. Peter A.
                                                                  DeFazio (Chairman of the committee) presiding.
                                                                    Mr. DEFAZIO. The committee will come to order.
                                                                    I ask unanimous consent that the chair be authorized to declare
                                                                  recess at any time during today’s hearing.
                                                                    Without objection, so ordered.
                                                                    Before proceeding further, I would first like to make a few com-
                                                                  ments about how we intend to proceed today. We had previously
                                                                  covered these issues, but I want to briefly remind Members for this
                                                                  hearing; it has been a while.
                                                                    Today’s hearing is being held in the committee’s hearing room,
                                                                  as well as remotely by Cisco Webex. For Members and staff in the
                                                                  hearing room, I do have an announcement based on guidance from
                                                                  the Attending Physician, dated June 16, 2020. Members, staff, and
                                                                  all those physically present are informed that, in accordance with
                                                                  recent guidance from the Office of the Attending Physician, masks
                                                                  must be worn at all times during today’s proceeding, except when
                                                                  a Member is speaking at a microphone.
                                                                    The chair views this as a safety issue and, therefore, an impor-
                                                                  tant matter of order and decorum, and will assert his responsibility
                                                                  to preserve order and decorum with respect to the wearing of
                                                                  masks. The chair’s authority to enforce the preservation of order
                                                                  and decorum during committee proceedings derives from the
                                                                  Speaker’s enforcement authority under clause 2 of rule I. Pursuant
                                                                  to clause 1 of rule XI, the rules of the House are the rules of its
                                                                  committees and subcommittees, as far as applicable.
                                                                    The committee chair has long been responsible for the enforce-
                                                                  ment of general decorum in their respective committees. The chair
                                                                  would greatly prefer that all present simply uphold the decorum of
                                                                  the committee by complying with reasonable safety standards that
                                                                  are recommended by the Attending Physician and are respectful of
                                                                  all the occupants in the room. However, failing that, enforcement
                                                                  would include denial of recognition toward Members who refuse to
                                                                  uphold standards of decorum.
                                                                    As this is a hybrid hearing, I also want to remind Members of
                                                                  key regulations from the House Committee on Rules to ensure the
                                                                                                                      (1)




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                                                                  hearing goes smoothly. Members must be visible—hello—on screen
                                                                  for purposes of identification when joining this hearing. Members
                                                                  must also continue to use the video function software platform,
                                                                  Cisco Webex, as lame as it is, for the remainder of the time they
                                                                  are attending this hearing, unless experiencing connectivity issues
                                                                  or other technical problems.
                                                                    If a Member is experiencing any connectivity issues or other
                                                                  technical problems, please inform committee staff as soon as pos-
                                                                  sible so you can receive assistance. The chat function is available
                                                                  for Members on the Webex site platform for this purpose. Members
                                                                  can also call the committee’s main phone line, 202–225–4472, for
                                                                  technical assistance by phone.
                                                                    Members may not participate remotely in any other proceeding
                                                                  that may be occurring simultaneously.
                                                                    It is the responsibility of each Member seeking recognition to
                                                                  unmute their microphone prior to speaking. To avoid any inad-
                                                                  vertent background noise, I request every Member to keep their
                                                                  microphone muted when not seeking recognition to speak. Should
                                                                  I hear any inadvertent background noise, I will request the Mem-
                                                                  ber to please mute their microphone.
                                                                    Finally, despite this being a hybrid hearing, I want to emphasize
                                                                  that all the standard rules of decorum apply.
                                                                    As the chair of today’s hearing, I will make a good faith effort
                                                                  to provide every Member experiencing connectivity issues an oppor-
                                                                  tunity to participate fully.
                                                                    Members will have the standard 5 minutes to ask questions.
                                                                    To insert a document into the record, please have your staff
                                                                  email it to the committee’s clerk, Mike Twinchek.
                                                                    This hearing is also being livestreamed for the public to view.
                                                                    And I would now recognize myself for my opening statement.
                                                                    Today’s hearing is focused on the United States Department of
                                                                  Transportation’s Disadvantaged Business Enterprise program,
                                                                  DBE program, for short. It is an essential program that seeks to
                                                                  remedy discrimination and its effects on women- and minority-
                                                                  owned businesses as they compete for federally assisted transpor-
                                                                  tation contracts. It seeks to ensure all businesses can compete for
                                                                  Federal transportation dollars on a level playing field.
                                                                    I am proud to follow in the footsteps of my friend, the former
                                                                  chairman of this committee, Jim Oberstar—there is Jim, right
                                                                  there [indicating portrait]—who was the last chairman to convene
                                                                  a hearing on this subject, 11 years ago, in 2009.
                                                                    I am also disturbed that, in the 11 years since that hearing, dis-
                                                                  crimination has continued to plague women and minorities in this
                                                                  country in the transportation sector. Discrimination is still terribly
                                                                  real in America. And if the events of 2020 have not proven that
                                                                  convincingly enough, I am confident the overwhelming evidence we
                                                                  have examined for this hearing will at least shut the door on the
                                                                  question, as it relates to federally assisted transportation projects.
                                                                    Our committee planned to hold this hearing more than 5 months
                                                                  ago, but our plans were delayed by the rapid spread of the COVID–
                                                                  19 pandemic. Sadly, the continuing pandemic only underscores the
                                                                  need for this hearing and for the DBE program. It is increasingly
                                                                  clear minority communities and minority-owned businesses have
                                                                  been disproportionately devastated by the virus.




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                                                                                                                      3

                                                                    Almost 2 months ago, during debate before the passage of H.R.
                                                                  2 on the House floor, I submitted 30 high-quality disparity studies
                                                                  into the Congressional Record, including many hundreds of pages
                                                                  of rigorous empirical evidence testifying to the reality of discrimi-
                                                                  nation and its effects on the transportation sector.
                                                                    Today I ask unanimous consent to insert into this committee’s
                                                                  record an additional 10 studies, for a total of 40 studies, only a
                                                                  sampling of the mountain of evidence this committee has seen over
                                                                  the years testifying to the reality of discrimination in the transpor-
                                                                  tation sector.
                                                                    Without objection, so ordered.
                                                                    [The information follows:]
                                                                                                            f

                                                                   Ten Disparity Studies, Submitted for the Record by Hon. Peter A. DeFazio
                                                                    The full text of each report is held on file electronically with the Committee on
                                                                  Transportation and Infrastructure.
                                                                  Dallas Fort Worth International Airport Disparity Study 2019, Colette Holt & Asso-
                                                                  ciates, 2019
                                                                  Washington State Airports Disparity Study 2019, Conducted for the Washington
                                                                  State Department of Transportation, Colette Holt & Associates, 2019
                                                                  City of South Bend Disparity Study 2019, Colette Holt & Associates, 2019
                                                                  2017 Minnesota Joint Disparity Study, Metropolitan Airports Commission, Draft Re-
                                                                  port, Keen Independent Research, January 2018
                                                                  2015 Disadvantaged Business Enterprise Disparity Study, John Wayne Airport,
                                                                  County of Orange, California, MGT of America, Inc., December 2016
                                                                  2015 Procurement Disparity Study, City of Portsmouth, Virginia, MGT of America,
                                                                  Inc., 2015
                                                                  Tampa International Airport 2015 Disparity Study Update, MGT of America, Inc.,
                                                                  August 2015
                                                                  The State of Minority- and Women-Owned Business Enterprise: Evidence from Mem-
                                                                  phis, Prepared for the Memphis-Shelby County Airport Authority, NERA Economic
                                                                  Consulting, December 2013
                                                                  The State of Minority- and Women-Owned Business Enterprise: Evidence from Mis-
                                                                  sissippi, Prepared for the Jackson Municipal Airport Authority, NERA Economic
                                                                  Consulting, December 2012
                                                                  The State of Minority- and Women-Owned Business Enterprise: Evidence from Mis-
                                                                  souri, Prepared for the Missouri Department of Transportation, NERA Economic
                                                                  Consulting, August 2012

                                                                     Mr. DEFAZIO. I repeatedly pointed to these disparity studies to
                                                                  demonstrate the reality of discrimination and its effects. But it is
                                                                  equally important to note that our committee has received quali-
                                                                  tative evidence of discrimination, as well. Letters from DBE-cer-
                                                                  tified business owners and other stakeholders from across the coun-
                                                                  try have come to this committee in the last few months, testifying
                                                                  to the importance of the program and to the reality of discrimina-
                                                                  tion faced by women and minority business owners. Some of those
                                                                  business owners and stakeholders are before us, virtually, today to
                                                                  share their stories, and I thank them for their testimony.
                                                                     The DBE program has been narrowly constructed to combat the
                                                                  discrimination laid out in the evidence from across this country. It
                                                                  is not a perfect program; I am sure we will hear more about that
                                                                  today. But I believe it is an essential program, if we want to ensure




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                                                                  a level playing field for all American businesses wishing to compete
                                                                  for Federal transportation dollars.
                                                                    Once again, I want to thank all the witnesses for taking the time
                                                                  to be with us today, particularly in this rather awkward virtual for-
                                                                  mat. This is a profoundly important topic, and I look forward to
                                                                  hearing your testimony.
                                                                    [Mr. DeFazio’s prepared statement follows:]
                                                                                                            f

                                                                  Prepared Statement of Hon. Peter A. DeFazio, a Representative in Con-
                                                                   gress from the State of Oregon, and Chairman, Committee on Transpor-
                                                                   tation and Infrastructure
                                                                     Today’s hearing is focused on the U.S. Department of Transportation’s Disadvan-
                                                                  taged Business Enterprise, or DBE, Program. This essential program seeks to rem-
                                                                  edy discrimination and its effects on women- and minority-owned businesses as they
                                                                  compete for Federally-assisted transportation contracts. It seeks to ensure all busi-
                                                                  nesses can compete for Federal transportation dollars on a level playing field.
                                                                     I am very proud to follow in the footsteps of my friend, the former Chairman of
                                                                  this Committee, Jim Oberstar, who was the last Chairman to convene a hearing on
                                                                  this subject eleven years ago in 2009. But I am also disturbed that in the eleven
                                                                  years since that hearing discrimination has continued to plague women and minori-
                                                                  ties in this country and in the transportation sector.
                                                                     Discrimination is still terribly real in America, and if the events of 2020 have not
                                                                  proven that convincingly enough, I’m confident the overwhelming evidence we have
                                                                  examined for this hearing will at least shut the door on the question as it relates
                                                                  to Federally-assisted transportation contracts.
                                                                     Our Committee planned to hold this hearing over five months ago, but our plans
                                                                  were delayed by the rapid spread of the COVID–19 pandemic. Sadly, the continuing
                                                                  pandemic only underscores the need for this hearing and for the DBE program. It
                                                                  is increasingly clear minority communities and minority-owned businesses have
                                                                  been disproportionately devastated by the virus.
                                                                     Almost two months ago, during debate before the passage of HR 2 on the House
                                                                  floor, I submitted thirty, high-quality disparity studies into the Congressional
                                                                  Record including many hundreds of pages of rigorous empirical evidence testifying
                                                                  to the reality of discrimination and its effects in the transportation sector. Today,
                                                                  I ask unanimous consent to insert into this Committee’s Record an additional ten
                                                                  studies, for a total of forty studies—only a sampling of the mountain of evidence
                                                                  this Committee has seen over the years—testifying to the reality of discrimination
                                                                  in the transportation sector.
                                                                     I have repeatedly pointed to these disparity studies to demonstrate the reality of
                                                                  discrimination and its effects, but it is equally important to note that our Committee
                                                                  has received qualitative evidence of discrimination as well. Letters from DBE-cer-
                                                                  tified business owners and other stakeholders from across the country have come
                                                                  to this committee in the last few months testifying to the importance of the pro-
                                                                  gram, and to the reality of discrimination faced by women and minority business
                                                                  owners. Some of those business owners and stakeholders are before us today to
                                                                  share their stories, and I thank them for being here.
                                                                     The DBE program has been narrowly constructed to combat the discrimination
                                                                  laid out in the evidence from across this country. It is not a perfect program, and
                                                                  I’m sure we will hear more about that today. But I believe it is an essential program
                                                                  if we want to ensure a level playing field for all American businesses wishing to
                                                                  compete for Federal transportation dollars.
                                                                     Once again, I want to thank all the witnesses for taking the time to be with us
                                                                  today, particularly in this virtual format. This is a profoundly important topic, and
                                                                  I look forward to hearing your testimony.

                                                                    Mr. DEFAZIO. With that, I would recognize the ranking member,
                                                                  Sam Graves, for an opening statement.
                                                                    Mr. GRAVES OF MISSOURI. Thank you, Chairman DeFazio, and I
                                                                  want to thank you for calling today’s hearing to review the Depart-
                                                                  ment of Transportation’s Disadvantaged Business Enterprise, or
                                                                  DBE, program.




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                                                                                                                      5

                                                                     We are all here today to examine the DBE program and deter-
                                                                  mine what, if anything, can be done to improve the program, mov-
                                                                  ing forward.
                                                                     It has been 37 years since Congress first created the DBE pro-
                                                                  gram, which was intended to help small businesses owned and con-
                                                                  trolled by those facing discriminatory barriers in the transpor-
                                                                  tation, construction, and airport concessions industry. Congress has
                                                                  recognized the success of the DBE program by continuing to keep
                                                                  it in place, and making adjustments as needed.
                                                                     I look forward to hearing from today’s witnesses as to the
                                                                  progress that we have made towards realizing the goals of the DBE
                                                                  program, and what recommendations they have.
                                                                     And with that, I yield back.
                                                                     [Mr. Graves of Missouri’s prepared statement follows:]
                                                                                                            f

                                                                  Prepared Statement of Hon. Sam Graves, a Representative in Congress
                                                                   from the State of Missouri, and Ranking Member, Committee on Trans-
                                                                   portation and Infrastructure
                                                                    We are here today to examine the DBE program and determine what, if anything,
                                                                  can be done to improve the program going forward.
                                                                    It has been 37 years since Congress first created the DBE program, which was
                                                                  intended to help small businesses owned and controlled by those facing discrimina-
                                                                  tory barriers in the transportation construction and airport concession industries.
                                                                    Congress has recognized the success of the DBE program by continuing it and
                                                                  making adjustments as needed.
                                                                    I look forward to hearing from today’s witnesses as to the progress that we have
                                                                  made toward realizing the goals of the DBE program, and what recommendations
                                                                  they have.

                                                                    Mr. DEFAZIO. I thank the gentleman. I now recognize the chair
                                                                  of the Subcommittee on Highways and Transit, Congresswoman
                                                                  Norton, for a statement.
                                                                    Ms. NORTON. Thank you, Mr. Chairman. I very much appreciate
                                                                  your holding this important hearing, especially this year.
                                                                    We are at a pivotal moment in our Nation’s history, we are shin-
                                                                  ing a long-overdue light on the lived realities of people of color in
                                                                  this country, despite our pledge of liberty and justice for all. Over
                                                                  the last few months, the vulnerability of African Americans,
                                                                  Latinos, Native American, and other Black and Brown people has
                                                                  been unmistakably demonstrated as we ride wave after wave of cri-
                                                                  sis, a global pandemic, a tanking economy, and systemic racism re-
                                                                  peatedly manifesting itself.
                                                                    The way in which our Nation has failed and marginalized large
                                                                  populations of our citizens, while unbearable to watch over and
                                                                  over again, comes as no surprise to those of us who feel the preva-
                                                                  lence of racism in our experience.
                                                                    I have spent my entire career—in Congress, and as chair of the
                                                                  U.S. Equal Opportunity Commission before that—fighting for
                                                                  equality and seeking to break down barriers so that all citizens
                                                                  have the same opportunities to participate and thrive in our econ-
                                                                  omy and our society.
                                                                    One of the most powerful tools in the field of transportation and
                                                                  construction to assist people who have been routinely left out is the
                                                                  Disadvantaged Business Enterprise program. This program, when
                                                                  properly administered and enforced, ensures that businesses owned




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                                                                                                                      6

                                                                  by women and minorities have a fair chance to compete for feder-
                                                                  ally assisted transportation contracts. The need for this program is
                                                                  ongoing, and stronger than ever, as income inequality in this coun-
                                                                  try, with a pandemic helping it to grow, continues.
                                                                     Today’s panel will provide mountains of statistical evidence that
                                                                  show discrimination in transportation and construction projects.
                                                                  Mr. Wainwright’s testimony documents, through rigorous statis-
                                                                  tical analysis and survey data collected by various agencies, the
                                                                  continued need for the DBE program. We are also joined today by
                                                                  individual business owners who have participated in the DBE pro-
                                                                  gram to provide some context for why these surveys and statistical
                                                                  studies matter.
                                                                     But let me point to a 2018 study conducted for the Maryland De-
                                                                  partment of Transportation, whose geographic market includes
                                                                  Washington, DC. The study looked at, among other things, whether
                                                                  prime contractors who work with minority- and women-owned
                                                                  firms as subcontractors on contracts with DBE-type goals ever so-
                                                                  licit or hire those same firms to work on contracts without such
                                                                  goals.
                                                                     The answers were stark and stunning: 69 percent of African-
                                                                  American-owned firms responded that they were seldom or never
                                                                  solicited to work on contracts without goals in place, and 74 per-
                                                                  cent of African-American-owned firms were seldom or never hired
                                                                  to work on contracts without goals. For Hispanic Americans, the
                                                                  results were 47 percent and 52 percent. For Asian Americans, the
                                                                  results were 56 percent and 61 percent. For Native Americans, the
                                                                  results were 82 percent and 70 percent. And for nonminority
                                                                  women, the results were 54 percent and 53 percent. This is just one
                                                                  regional example, but this pattern repeats itself across the country.
                                                                     In closing, I remind my colleagues that this hearing presents a
                                                                  welcome opportunity to elevate the realities of minority- and
                                                                  women-owned business owners. By holding this hearing today, we
                                                                  ensure that the DBE program and the business owners it lifts up
                                                                  will receive thorough consideration by our committee.
                                                                     We also have the opportunity to learn what policy changes Con-
                                                                  gress should consider for the continued success of the DBE pro-
                                                                  gram.
                                                                     And I look forward to hearing from today’s witnesses, as well as
                                                                  from my fellow members of this committee.
                                                                     Thank you very much, Mr. Chairman.
                                                                     [Ms. Norton’s prepared statement follows:]
                                                                                                            f

                                                                  Prepared Statement of Hon. Eleanor Holmes Norton, a Delegate in Con-
                                                                   gress from the District of Columbia, and Chairwoman, Subcommittee on
                                                                   Highways and Transit
                                                                    Thank you, Mr. Chairman. I cannot overstate the importance of this hearing on
                                                                  the U.S. Department of Transportation’s Disadvantaged Business Enterprise pro-
                                                                  gram. I thank Chairman DeFazio, Ranking Member Graves, and all the Members
                                                                  participating today for your time and attention to this critical topic.
                                                                    We are at a pivotal moment in our Nation’s history. We are shining a long over-
                                                                  due light on the lived realities for people of color in this country, despite our pledge
                                                                  of ‘‘liberty and justice for all’’. Over the last few months, the vulnerability of African
                                                                  American, Latinx, Native American, and other black and brown people has been un-
                                                                  mistakably demonstrated as we ride wave after wave of crisis—a global pandemic,




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                                                                  a tanking economy, and systemic racism repeatedly manifesting as physical vio-
                                                                  lence.
                                                                     The ways in which our Nation has failed and marginalized large populations of
                                                                  our citizens—while unbearable to watch over and over again—comes as no surprise
                                                                  to those of us who can feel the prevalence of racism in our bones. I have spent my
                                                                  entire career—in Congress, and as Chair of the U.S. Equal Opportunity Commission
                                                                  before that—fighting for equality and seeking to break down barriers so that truly
                                                                  all citizens have the same opportunities to participate and thrive in our economy
                                                                  and our society.
                                                                     One of the most powerful tools in the field of transportation and construction to
                                                                  assist people who have routinely been left out or left behind is the U.S. Department
                                                                  of Transportation’s Disadvantaged Business Enterprise (DBE) Program. This pro-
                                                                  gram, when properly administered and enforced, ensures that businesses owned by
                                                                  women and minorities have a fair chance to compete for federally assisted transpor-
                                                                  tation contracts.
                                                                     The need for this program is ongoing, and stronger than ever, as income inequal-
                                                                  ity in this country with the pandemic helping it to grow. Today’s panel will provide
                                                                  mountains of statistical evidence that shows discrimination on transportation con-
                                                                  struction projects is, unfortunately, alive and well.
                                                                     Mr. Wainwright’s testimony documents, through rigorous statistical analysis and
                                                                  survey data collected by various public agencies, the continued need for the DBE
                                                                  program.
                                                                     We are also joined today by individual business owners who have participated in
                                                                  the DBE program and will share their personal stories of how this program affirma-
                                                                  tively created opportunities that did not exist in its absence. I would like in par-
                                                                  ticular to thank Ms. Lerdahl, Ms. Williams, and Ms. Boyer for sharing your experi-
                                                                  ences with the Committee.
                                                                     To provide some context for why these surveys and statistical studies matter, let
                                                                  me point to a 2018 study conducted for the Maryland Department of Transportation,
                                                                  whose geographic market area includes Washington, D.C. The study looked at,
                                                                  among other things, whether prime contractors who work with minority- and
                                                                  women-owned firms as subcontractors on contracts with DBE-type goals ever solicit
                                                                  or hire those same firms to work on contracts without such goals. The answers were
                                                                  stark and stunning—69 percent of African American owned firms responded that
                                                                  they were seldom or never solicited to work on contracts without goals in place, and
                                                                  74 percent of African American owned firms were seldom or never hired to work
                                                                  on contracts without goals. For Hispanic Americans the results were 47 percent and
                                                                  52 percent; for Asian Americans the results were 56 percent and 61 percent; for Na-
                                                                  tive Americans the results were 82 percent and 70 percent; and for non-minority
                                                                  women, the results were 54 percent and 53 percent. This is just one regional exam-
                                                                  ple but this pattern repeats itself across the country.
                                                                     In closing, I remind my colleagues that this hearing presents a welcome oppor-
                                                                  tunity to elevate the realities of minority and women-owned business owners. By
                                                                  holding this hearing today, we ensure that the DBE program and the business own-
                                                                  ers it lifts up receive thorough consideration by this Committee. We also have the
                                                                  opportunity to learn what policy changes Congress should consider for the continued
                                                                  success of the DBE program in the future.
                                                                     I look forward to hearing from today’s witnesses, as well as my fellow Members,
                                                                  on the DBE program.

                                                                    Mr. DEFAZIO. Thank you, Ms. Norton. I now call on the ranking
                                                                  member of the Subcommittee on Highways and Transit, Mr. Davis.
                                                                    Mr. DAVIS. Thank you, Chairman DeFazio. I want to thank the
                                                                  witnesses for participating in this important hearing. I want to
                                                                  give a special welcome to my friend, Ms. Geri Boyer, who is in
                                                                  southern Illinois right now.
                                                                    I understand Congressman Bost is going to be providing us with
                                                                  your full introduction today, so I won’t steal his thunder, unless he
                                                                  screws it up.
                                                                    So I am watching you right now, Mike.
                                                                    But it is great to see you. I appreciate the work you do for Illi-
                                                                  nois and across the Midwest.
                                                                    The Disadvantaged Business Enterprise program, administered
                                                                  by the Department of Transportation, applies to airport construc-




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                                                                  tion, airport concessions, and surface transportation construction
                                                                  programs. The program addresses discrimination against minority-
                                                                  and women-owned businesses, and provides those businesses with-
                                                                  in the transportation industry an equal opportunity to participate
                                                                  in billions of dollars of DOT-assisted highway, transit, and airport
                                                                  contracts each year.
                                                                     The DBE program has been successful, and this committee has
                                                                  demonstrated a bipartisan commitment to this program and to pro-
                                                                  moting full and fair access to transportation contracting opportuni-
                                                                  ties.
                                                                     I commend the chairman and the ranking member for holding
                                                                  this hearing today. This is an important discussion, important to
                                                                  all of us in the room, and those connecting remotely, and to the Na-
                                                                  tion, as a whole.
                                                                     Mr. Chair, I yield back the balance of my time.
                                                                     [Mr. Davis’ prepared statement follows:]
                                                                                                            f

                                                                  Prepared Statement of Hon. Rodney Davis, a Representative in Congress
                                                                   from the State of Illinois, and Ranking Member, Subcommittee on High-
                                                                   ways and Transit
                                                                     I want to thank the witnesses for participating in this important hearing, and I
                                                                  want to give a special welcome to Ms. Geri Boyer. It is great to see you and I appre-
                                                                  ciate the work you do for Illinois and across the Midwest.
                                                                     The Disadvantaged Business Enterprise program, administered by the Depart-
                                                                  ment of Transportation, applies to airport construction, airport concessions, and sur-
                                                                  face transportation construction programs. The program addresses discrimination
                                                                  against minority and women-owned businesses and provides those businesses within
                                                                  the transportation industry an equal opportunity to participate in billions of dollars
                                                                  of DOT-assisted highway, transit, and airport contracts each year.
                                                                     The DBE program has been successful, and this Committee has demonstrated a
                                                                  bipartisan commitment to this program and to promoting fair and full access to
                                                                  transportation contracting opportunities.
                                                                     I commend you for holding this hearing today. This is an important discussion—
                                                                  important to all of us in the room and those connecting remotely, and to the Nation
                                                                  as a whole.

                                                                    Mr. DEFAZIO. I thank the gentleman.
                                                                    I would now like to welcome the witnesses on our panel: Ms.
                                                                  Evalynn Williams, president, Dikita Enterprises, on behalf of the
                                                                  Conference of Minority Transportation Officials; Ms. Geri Boyer,
                                                                  president, Kaskaskia Engineering Group, on behalf of the Amer-
                                                                  ican Council of Engineering Companies; Ms. Mary Lerdahl, owner,
                                                                  Emerald Consulting Services; Mr. Farad Ali, at-large board direc-
                                                                  tor, Airport Minority Advisory Council; Mr. Sandy-Michael McDon-
                                                                  ald, director, Office of Economic and Small Business Development,
                                                                  Broward County, Florida; and Ms. Sandra Norman, administrator,
                                                                  civil rights division, Virginia Department of Transportation; and
                                                                  Mr. Jon Wainwright, Ph.D., affiliated consultant, NERA Economic
                                                                  Consulting.
                                                                    Thank you all for participating today. We are looking forward to
                                                                  your testimony.
                                                                    Without objection, our witnesses’ full statements will be included
                                                                  in the record.
                                                                    Hearing none.




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                                                                     Since your written testimony has been made part of the record,
                                                                  the committee requests you limit your oral testimony to 5 minutes.
                                                                  Summarize as best as possible.
                                                                     Before we hear from our panel of witnesses, I recognize Rep-
                                                                  resentative Johnson to introduce Ms. Evalynn Williams.
                                                                     Representative Johnson?
                                                                     Ms. JOHNSON OF TEXAS. Yes, thank you very much. And I want
                                                                  to thank all of the witnesses for being present.
                                                                     I want to say that I am pleased to introduce Ms. Evalynn Wil-
                                                                  liams, who is a constituent in Dallas, Texas. She has served as the
                                                                  chief financial officer for Dikita for 26 years, prior to transitioning
                                                                  to the president and CEO in 2010. Following and guided by her fa-
                                                                  ther, the company has grown to unprecedented heights. Under her
                                                                  leadership, the company has continued to thrive in new markets
                                                                  and obtain large and notable projects. Dikita’s largest client is Dal-
                                                                  las Area Rapid Transit, where the company has managed transit
                                                                  and NTD data for the last 28 consecutive years. Recently, Dikita
                                                                  completed a prime role as a 49-percent JV partner designing and
                                                                  managing the construction of DART’s last 3 miles of light rail, and
                                                                  I look forward to her testimony.
                                                                     And thank you very much for being here.
                                                                     Mr. DEFAZIO. Thanks, Representative Johnson. I now recognize
                                                                  Representative Bost to introduce Ms. Geri Boyer, under threat by
                                                                  Rodney Davis.
                                                                     Mr. BOST. Thank you, Mr. Chairman. You know, I am happy to
                                                                  have the opportunity to introduce our constituent, Geri Boyer from
                                                                  Belleville, Illinois, as a witness for today’s hearing.
                                                                     Ms. Boyer is a founder, owner, and president of Kaskaskia Engi-
                                                                  neering Group. Kaskaskia Engineering Group is a civil engineering
                                                                  and contracting firm that has been recognized on the list of St.
                                                                  Louis Business Journal’s largest women-owned businesses over the
                                                                  past decade. Ms. Boyer has also won multiple awards for her lead-
                                                                  ership. She is an active member of the American Council of Engi-
                                                                  neering Companies, Associated General Contractors of Illinois, Illi-
                                                                  nois Association of County Engineers, and the Illinois Association
                                                                  of Highway Engineers. Ms. Boyer is also an active member within
                                                                  our community, working with the Belleville CEO Program and is
                                                                  the civil chairperson for the Belle-Scott Committee of the Greater
                                                                  Belleville Chamber of Commerce.
                                                                     I am excited to have her give her testimony on the Department’s
                                                                  Disadvantaged Business Enterprise program, and look forward to
                                                                  the insight that she can offer, given her years of success in busi-
                                                                  ness. She is one of the most qualified witnesses, I believe, that is
                                                                  on the panel today, and I appreciate her being here, and I appre-
                                                                  ciate the opportunity to introduce her.
                                                                     And Rodney, I hope that was good enough for you, because I
                                                                  think Geri is going to do a great job.
                                                                     And with that, I yield back.
                                                                     Mr. DEFAZIO. Rodney stepped out, but I am sure he is in accord-
                                                                  ance. I think that was very well done. So thank you.
                                                                     We will now move to witness testimonies.
                                                                     Ms. Williams, you may proceed. You are recognized for 5 min-
                                                                  utes.




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                                                                                                                  10
                                                                  TESTIMONY OF EVALYNN WILLIAMS, PRESIDENT AND CHIEF
                                                                   EXECUTIVE OFFICER, DIKITA ENTERPRISES, INC., ON BE-
                                                                   HALF OF THE CONFERENCE OF MINORITY TRANSPOR-
                                                                   TATION OFFICIALS; GERI E. BOYER, P.E., PRESIDENT,
                                                                   KASKASKIA ENGINEERING GROUP, LLC, ON BEHALF OF THE
                                                                   AMERICAN COUNCIL OF ENGINEERING COMPANIES; MARY
                                                                   T. LERDAHL, PRESIDENT, EMERALD CONSULTING SERVICES,
                                                                   LLC; FARAD ALI, CHAIRMAN, GOVERNMENT AFFAIRS COM-
                                                                   MITTEE, AIRPORT MINORITY ADVISORY COUNCIL; SANDY-
                                                                   MICHAEL E. MCDONALD, DIRECTOR, OFFICE OF ECONOMIC
                                                                   AND SMALL BUSINESS DEVELOPMENT, BROWARD COUNTY,
                                                                   FLORIDA; SANDRA D. NORMAN, DIVISION ADMINISTRATOR,
                                                                   CIVIL RIGHTS, VIRGINIA DEPARTMENT OF TRANSPOR-
                                                                   TATION; AND JON S. WAINWRIGHT, PH.D., AFFILIATED CON-
                                                                   SULTANT, NERA ECONOMIC CONSULTING
                                                                     Ms. WILLIAMS. Good morning, and I want to thank you for allow-
                                                                  ing me the opportunity to testify in support of the DBE program.
                                                                  My name is Eve Williams, president of Dikita Enterprises, a 40-
                                                                  year-old African-American engineering firm located in Dallas,
                                                                  Texas. And today I speak on behalf of COMTO, as well as all the
                                                                  DBEs across the Nation.
                                                                     I also sit on the APTA board of directors, where next month I
                                                                  will become the first African-American female to chair its distin-
                                                                  guished Business Members Board of Governors.
                                                                     My company has been a part of the DBE program since its begin-
                                                                  ning, and is the oldest black engineering firm in north Texas.
                                                                     Being a female, Black, and a small business in the construction
                                                                  industry has many challenges. Programs such as the DBE program
                                                                  provide us a chance to participate in lead roles, which affords us
                                                                  the opportunity to create majority-minority teams. One success
                                                                  story I would like to share.
                                                                     Dikita was a 49-percent partner in a team where we designed
                                                                  the last 3 miles of the rail system for Dallas Area Rapid Transit.
                                                                  We saved the agency over $4 million, and began revenue service 2
                                                                  months ahead of schedule. The icing on the cake is that 60 percent
                                                                  of the project was designed by DBE firms.
                                                                     Being called disadvantaged is not a privilege, nor does it sound
                                                                  like a company’s goal. And quite frankly, it was embarrassing, ex-
                                                                  plaining that to my 25-year-old millennial. What an engaging con-
                                                                  versation that followed.
                                                                     The public sector is where firms like Dikita has its greatest op-
                                                                  portunity. But please note, if majority companies and public agen-
                                                                  cies are not incentivized to include firms like mine, they won’t. Let
                                                                  me give you a case in point.
                                                                     We were going after a project in a small suburban community
                                                                  near Dallas. I knew about the proposal because of my strong rela-
                                                                  tionships in the community. The project was much in our wheel-
                                                                  house, but since there were parts of the work that others could do
                                                                  better, we reached out to a nationally known, local firm that we
                                                                  had worked with in the past. They were not aware of the oppor-
                                                                  tunity. What happened next was shocking, but not surprising.
                                                                     In an email thread that was inadvertently sent to me, I read a
                                                                  discussion that went something like this. Of course, I changed the
                                                                  names here. So I called John to ask if they’d be interested in




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                                                                  teaming with us. John informed his boss, Ted. John explained the
                                                                  services, and thought Dikita and their company could do well, since
                                                                  we had a relationship.
                                                                     Ted asked about the minority participation goal. John told him
                                                                  there was no minority goal. Ted asked John, ‘‘Then why would we
                                                                  sub to Dikita?’’ John reminded Ted that Dikita was the best at
                                                                  what they were doing.
                                                                     Ted told him that, since there was no minority participation goal,
                                                                  ‘‘Dig into the opportunity, and we will just do it ourselves.’’
                                                                     When John questioned Ted again, Ted told them, ‘‘Hey, we’re big-
                                                                  ger, just reject the offer.’’
                                                                     This is when John sent me an email rejecting our offer, and inad-
                                                                  vertently included the entire thread. The email was so painful and
                                                                  disappointing.
                                                                     There are so many sad storybook episodes regarding blatant dis-
                                                                  criminatory practices, especially against Black firms. In fact, if you
                                                                  look closer at the minority goals being met today, you more than
                                                                  likely will find that African Americans who the DBE program was
                                                                  first written for will have the smallest percentages, while other
                                                                  groups have benefitted more. Black professional firms are starting
                                                                  to be an endangered species, like the bald eagle was.
                                                                     I do want to bring one barrier that you have the power to
                                                                  change. That is the formula in determining personal net worth. It
                                                                  took 22 years before an inflationary adjustment was made to the
                                                                  personal net worth statement in 2011. It is now almost another 10
                                                                  years and counting. The lack of regular inflationary adjustments
                                                                  could prematurely remove small businesses from the program.
                                                                     One idea I have is to exclude retirement savings from the net
                                                                  worth calculation. Currently, it includes restricted funds such as
                                                                  401(k), which disincentivizes a business owner to save for retire-
                                                                  ment. So here I am, respectfully asking for your consideration to
                                                                  remove retirement savings from the personal net worth calculation.
                                                                     In conclusion, this program is not a handout. It is a leg up. It
                                                                  forces big companies and public agencies to play fair. And, quite
                                                                  frankly, without the DBE program, we would be out of business at
                                                                  the end date of the last contract in our pipeline. We should be pro-
                                                                  tected like——
                                                                     [Microphone unmuted.]
                                                                     Mr. DEFAZIO. Somebody is transmitting. Just conclude, then, Ms.
                                                                  Williams. Thank you, sorry about that.
                                                                     [No response.]
                                                                     Mr. DEFAZIO. OK?
                                                                     Ms. WILLIAMS. Yes, thank you.
                                                                     [Ms. Williams’ prepared statement follows:]
                                                                                                            f

                                                                  Prepared Statement of Evalynn Williams, President and Chief Executive
                                                                   Officer, Dikita Enterprises, Inc., on behalf of the Conference of Minority
                                                                   Transportation Officials
                                                                    My name is Evalynn Williams. I am the President and CEO of Dikita Enterprises,
                                                                  Inc., a family-owned minority consulting engineering and architectural firm
                                                                  headquartered in Dallas, Texas. We celebrated our 40th year in business last No-
                                                                  vember. We provide civil design, program and construction management, and transit
                                                                  market research as it relates to public transit planning. We have 40–50 people typi-
                                                                  cally and employ all nationalities of which many are skilled professionals who are




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                                                                                                                  12
                                                                  either woman or are of a minority group. My father, Lucious Williams, founded the
                                                                  firm in 1979 in Milwaukee Wisconsin and branched to Dallas, where I was attend-
                                                                  ing college in 1983. I promised him 2 years as his CFO in exchange for paying off
                                                                  my college loans, which was only $5,000 at the time. That was 36 years ago. We’ve
                                                                  been partners ever since. Over the years, especially in the 80 and 90’s we have
                                                                  many times been the first African American firm to be awarded . . . and you can fill
                                                                  in the blank. Even today, I’m amazed that we continue to be the first African Amer-
                                                                  ican engineering firm to prime a contract with public entities. Many of the firms
                                                                  we began with in the early 80s no longer exist for various reasons, but mostly be-
                                                                  cause of the lack of opportunities and resources. We are the oldest African American
                                                                  professional engineering firm in North Texas.
                                                                     We offer our services to mainly the governmental sectors, that are federally, state
                                                                  or locally funded. Our industries include public transit, highways, aviation, public
                                                                  educational institutions, including K–12 and higher education, municipalities for
                                                                  roadway and infrastructure projects. We have worked on multi-billion dollar projects
                                                                  as well as those under $100,000. We have worked across the nation providing a va-
                                                                  riety of services, typically transit planning. We are certified in 19 locations across
                                                                  the nation. Being certified in these many areas allow us to participate with transit
                                                                  properties and provide transit market research. We typically are precluded from of-
                                                                  fering engineering services as a DBE in other states because of certain state laws.
                                                                  Neither my father nor I have a professional engineering license. We excel in man-
                                                                  agement, marketing and financial expertise.
                                                                     I have a BBA degree in information systems and an MBA in accounting. I serve
                                                                  on several civic boards and have won my share of awards. I am currently a member
                                                                  of COMTO and the American Public Transportation Association (APTA), where, in
                                                                  October, I will become the first African American female to chair APTA’s distin-
                                                                  guished Business Members Board of Governors. APTA membership includes at least
                                                                  90% of all public transit organizations in North America and practically every large
                                                                  national commercial firm that does business with public transit authorities.
                                                                  COMTO, which is the Conference of Minority Transportation Officials, is the leading
                                                                  national advocate for employment diversity, inclusion and contracting opportunities
                                                                  in the multi-modal, multi-billion-dollar transportation industry. Their mission is to
                                                                  eliminate barriers to maximum participation for minority individuals, veterans, peo-
                                                                  ple with disabilities and certified MWDBE businesses.
                                                                     In 2010, I became President and CEO of Dikita and my father has remained ac-
                                                                  tive as the Chairman of the Board and Director of Government Affairs. He owns
                                                                  51% of the firm and I own 47%, while my oldest daughter owns 2%. Being trained
                                                                  in accounting and finance, running an engineering firm has its challenges in of
                                                                  itself. Being a female, an African American, and a small business in the construc-
                                                                  tion industry has had many challenges. There are certain systemic stereotypes that
                                                                  are associated with all the classes of categories I’ve mentioned, but typically they
                                                                  all have one thing in common. The idea that women, African Americans, small busi-
                                                                  nesses, engineering companies ran by non-engineers—produce an inferior work
                                                                  product. These certainly create barriers for successfully contracting and being rel-
                                                                  evant in the industry. Of all these labels, I think being African American, however,
                                                                  presents the biggest challenge when competing for work.
                                                                     Being a disadvantaged business has certainly helped level the playing field. As
                                                                  the CEO of a 2nd generation African American engineering and architectural firm,
                                                                  we would never have sustained had it not been for disparity programs such as the
                                                                  Federal DBE Program. Competition for prime contracts with the Department of
                                                                  Transportation, Federal Aviation and Federal Transit is difficult at best, and out
                                                                  of reach for most minority and women owned businesses (M/WBE).
                                                                     It is almost impossible for DBE firms to compete with large national and inter-
                                                                  national firms. They have the capacity and depth within their workforce and can
                                                                  pull from global office locations. And over the last 15 years, they have gotten even
                                                                  larger; which makes the reauthorization of the DBE Program is so extremely critical
                                                                  to firms such as Dikita Enterprises, Inc. It provides us with opportunities to join
                                                                  a team as a subcontractor, a prime or joint venture partner, which in turn helps
                                                                  to build financial capacity and workforce resources. It’s because of this program,
                                                                  Dikita led a joint-venture team with a huge majority firm to design and build the
                                                                  last 3 miles of rail line for the Dallas Area Rapid Transit system (DART), saving
                                                                  the agency over $4 million. DART was able to open for revenue service 2 months
                                                                  ahead of schedule. Sixty-one percent of the team were DBE firms.
                                                                     The truth is . . . if not for the DBE Program, large corporations would not share
                                                                  the work and would self-perform 100% of contract-work. Being called ‘‘disadvan-
                                                                  taged’’ is not a privilege nor does it sound like a goal that a company would strive
                                                                  to be. The reality is, without the program we would not have a chance at fair com-
                                                                  petition. Quite frankly, it was embarrassing explaining to my 21-year-old millennial,




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                                                                  a few years ago, why we were considered a disadvantaged business. I can tell you
                                                                  that an engaging conversation and history lesson spun from this revelation. Never-
                                                                  theless, the DBE program is necessary for the continuing survival of firms such as
                                                                  mine—to feed our families, educate our youth, and build our communities.
                                                                     I know for a fact that if it wasn’t for the federal and local equity programs, we
                                                                  would not be able to compete or obtain contracts. That is evident when you look at
                                                                  private vs. public work. In the public sector, the large firms that are considered
                                                                  primes, contract with us only to the extent that it will help them win the project.
                                                                  If the goal is 25%, then they will typically subcontract only that minimum amount,
                                                                  even though we are a proven entity. Case in point. We were going after a project
                                                                  in a small suburban community near Dallas. I found out about the request for pro-
                                                                  posal because I had very strong relationships in that community. Much of the
                                                                  project was within our wheelhouse and we felt certain we could successfully propose
                                                                  and win. Since there were parts of the work that others could do better, we reached
                                                                  out to a nationally known local firm that we had worked with in the past. They
                                                                  were not aware of the opportunity. What happened later was shocking but not sur-
                                                                  prising. In an email thread that was inadvertently sent to me, I read a discussion
                                                                  that went something like this (all names are fictitious and are here to make the
                                                                  conversation easier to understand):
                                                                     • John informed his boss Ted that Dikita had inquired about XYZ company pro-
                                                                        viding service on an upcoming proposal.
                                                                     • Ted asked about the services to be performed and John explained the services
                                                                        and thought Dikita and XYZ could do well since they have worked together in
                                                                        the past.
                                                                     • Ted asked about the minority participation goal.
                                                                     • John told him that there was no minority goal.
                                                                     • Ted asked John why they would sub to Dikita.
                                                                     • John reminded Ted that Dikita was very good at providing these type of spe-
                                                                        cialty services
                                                                     • Ted told John that XYZ was bigger and to dig into the opportunity.
                                                                     • When John asked about participating with Dikita, Ted told him that since there
                                                                        was no minority participation, they would just do the project themselves.
                                                                     • When John questioned Ted again, Ted told him that XYZ was bigger and to re-
                                                                        ject our offer.
                                                                     • This is when John sent us an email rejecting our offer and inadvertently in-
                                                                        cluded the entire thread.
                                                                     This kind of conversation among large majority firms is not unusual and is a mat-
                                                                  ter of practice. And often we only suspect or hear about why we were rejected from
                                                                  a third party. However, this was played out in an email and was so painful and
                                                                  disappointing.
                                                                     There are many story-book episodes regarding blatant discriminatory practices
                                                                  that occur to either keep minority firms small or run them out of business, espe-
                                                                  cially African American firms. Everyone knows that DBE businesses often live
                                                                  month to month unless we have been successful in backfilling our pipelines with fu-
                                                                  ture projects. One of the most disheartening feelings is to know that you are only
                                                                  as good as the current project. We have had many relationships with larger firms
                                                                  and have provided excellent service, but it’s never quite the excellent services in
                                                                  which you are remembered. We are the token DBE checkbox that fulfilled the re-
                                                                  quirement. This I say because I have witnessed the less than genuine relationships
                                                                  we have forged. We can perform exceptionally well for many years on a 5-year large
                                                                  project. However, I notice that when that same large firm is going for the exact
                                                                  project-type in another state, they will not invite us to the team. When I’ve asked
                                                                  about being on the team, the reply is the same, ‘‘we needed you in Dallas, we will
                                                                  ‘use’ someone else in Houston’’. When I question why, the answer is always ‘‘because
                                                                  you are only useful in Dallas and taking you to other cities or states doesn’t help
                                                                  us to win’’, even if we are the best in providing the services required. It’s political.
                                                                  Well that mentality keeps firms like mine small and confines us to our own neigh-
                                                                  borhoods. For us to grow, we need not only to be able to work in other states, but
                                                                  to work in the private industry. Working for private developers is typically not an
                                                                  option, hence the need for DBE program for government projects.
                                                                     I’d like to talk about another challenge I see with the DBE Program. While I ap-
                                                                  preciate the nature of the DBE program, there seems to be a lack of attention to
                                                                  some of the challenges we face. Still in existence are discriminatory and other re-
                                                                  lated barriers that pose significant obstacles for minority and women-owned busi-
                                                                  nesses competing for federally funded contracts. One such barrier is the lack of reg-
                                                                  ular inflation-adjustments to the Personal Net Worth requirement for DBE certifi-
                                                                  cation. Unlike the Business Revenue Cap, (which is reviewed and adjusted periodi-
                                                                  cally by the Secretary of Transportation) it was 22 years before an inflation-adjust-




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                                                                  ment was made to the Personal Net Worth, increasing the 1989 cap of $750K to
                                                                  $1.3M in 2011. It is important to note that much like the economy, the personal
                                                                  net worth of DBE owners and their companies are fluid. The lack of regular infla-
                                                                  tion-adjustments stops DBE businesses from growing and could prematurely remove
                                                                  businesses such as mine from the program. Some folks think that this $1.3M net
                                                                  worth is vast. If you are a successful business, you must accumulate a net worth
                                                                  that will allow banks to loan you money in order to continue upward growth and
                                                                  mobility. But more importantly, you must save money for retirement. While the for-
                                                                  mula for calculating personal net worth excludes our homestead, it does include
                                                                  your retirement savings. By including restricted retirement savings into the calcula-
                                                                  tion, it acts to disincentivize a business owner from saving adequately for retire-
                                                                  ment. At the end of the day, we all should have a transition plan and be able to
                                                                  retire comfortably. However, if most of the dollars I save become retirement assets
                                                                  and those assets count against me in the certification process, then I’m likely not
                                                                  encouraged to save but to spend. So, I am asking that the program exclude retire-
                                                                  ment savings from the Personal Net Worth calculation.
                                                                     In conclusion, the disparity and the inequities of our capitalistic society, coupled
                                                                  with the injustices from America’s history of discriminatory practices against Afri-
                                                                  can Americans specifically, are reasons that DBE program must continue to exist
                                                                  and expand. My dad, my daughters and I depend on the program to stay in busi-
                                                                  ness. This program is not a handout, it’s a leg up. It forces the big companies to
                                                                  play fair, and quite frankly, if we graduated from the program (and its sister M/
                                                                  WBE local programs) or the program is dissolved, we would be out of business at
                                                                  the expiration date of the last contracts in our pipeline.

                                                                     Mr. DEFAZIO. OK, thank you for your testimony and your sugges-
                                                                  tion.
                                                                     Ms. Boyer, you may proceed.
                                                                     Ms. BOYER. Chairman DeFazio and Ranking Member Graves,
                                                                  thank you for the opportunity to testify before the committee today.
                                                                  It is an honor to represent my firm and my colleagues in the Na-
                                                                  tion’s engineering industry.
                                                                     And thank you, Representative Davis and Representative Bost,
                                                                  for that kind introduction.
                                                                     As you heard, my name is Geri Boyer. I am president and sole
                                                                  owner of Kaskaskia Engineering Group, headquartered in Belle-
                                                                  ville, Illinois. We have DBE certifications in Illinois, Iowa, Indiana,
                                                                  Kentucky, Missouri, Minnesota, and Wisconsin.
                                                                     I am testifying today on behalf of the American Council of Engi-
                                                                  neering Companies, the business association of the Nation’s engi-
                                                                  neering industry. ACEC represents nearly 5,500 engineering com-
                                                                  panies, nationwide. Our members include very large firms with
                                                                  tens of thousands of employees as well as hundreds of small busi-
                                                                  nesses like mine.
                                                                     I want to communicate three main points to you today: first of
                                                                  all, DBE programs are essential for helping businesses like mine
                                                                  compete for work; second, securing certifications in different States
                                                                  and different jurisdictions can be burdensome; and three, for pro-
                                                                  fessional engineering and design-related services, it is important to
                                                                  balance DBE considerations with qualification-based selection pro-
                                                                  cedures.
                                                                     DBE programs have provided me the opportunity to diversify and
                                                                  grow my company within the engineering and construction indus-
                                                                  try throughout the Midwest. I still encounter discrimination and
                                                                  the historic effects of discrimination, and DBE certification gives
                                                                  me the opportunity to compete for contracts and expand my busi-
                                                                  ness opportunities.
                                                                     If we are going to be able to sustain our profession and continue
                                                                  to support the transportation clients we serve, it is imperative that




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                                                                  we continue these efforts. Diversification makes our companies and
                                                                  our industry stronger, and it makes us more appealing to the next
                                                                  generation of professionals which we desperately need to recruit.
                                                                  Federal DBE programs are one tool to bring these goals forward.
                                                                     However, one challenge for DBE firms like mine that work in
                                                                  multiple jurisdictions is the lack of a unified approach to DBE cer-
                                                                  tification. The changes made in MAP–21 to implement a uniform
                                                                  certification application and reporting forms have been helpful. All
                                                                  the States I mentioned before use the uniform application, but they
                                                                  require the entire application again at different times of the year.
                                                                  The application must be current to equipment, purchases, loans,
                                                                  and anything else a business uses to run their day-to-day oper-
                                                                  ation. This creates unnecessary work for the DBE firm and the
                                                                  public agency, who both have limited time and budget pressures.
                                                                     I submitted for the hearing record a white paper I helped develop
                                                                  with the ACEC Illinois Business Practices Committee. It goes into
                                                                  greater detail on certification challenges and potential solutions to
                                                                  streamline and simplify the process.
                                                                     Lastly, I want to note the intersection of DBE certification with
                                                                  Federal and State procurement requirements for contracting for en-
                                                                  gineering services. Current laws require agencies using Federal
                                                                  funds to follow QBS, qualification-based selection procedures, for
                                                                  procuring engineering and design-related services. Under QBS,
                                                                  agencies select firms based on their experience, expertise, and dem-
                                                                  onstrated competence. These rules apply to federal-aid highway,
                                                                  transit, and airport improvement programs through various pieces
                                                                  of legislation approved by this committee over many years, which
                                                                  ACEC strongly supported.
                                                                     Current regulations strike an effective balance between the QBS
                                                                  framework and DBE program goals. Contracting agencies are re-
                                                                  quired to give consideration to DBEs, but without set-aside con-
                                                                  tracts or quotas. State and local agencies set their own DBE pro-
                                                                  gram participation goals and the method for achieving them, sub-
                                                                  ject to DOT approval, of course. Agencies may use an evaluation
                                                                  criterion for DBE participation limited to 10 percent of the overall
                                                                  qualifications-based selection criteria, or they can establish DBE
                                                                  participation goals, which can be satisfied through good-faith ef-
                                                                  forts.
                                                                     ACEC supports this approach. It helps to achieve DBE program
                                                                  goals, while still emphasizing qualifications as the preeminent fac-
                                                                  tor in selecting engineering firms. Increasing the weight of DBE as
                                                                  a selection criterion, or adding specific set-asides, quotas, or man-
                                                                  dates will diminish QBS and the successful project delivery that it
                                                                  promotes.
                                                                     Thank you again for the opportunity to testify today. I will be
                                                                  happy to answer any questions later.
                                                                     [Ms. Boyer’s prepared statement follows:]




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                                                                                                            f
                                                                  Prepared Statement of Geri E. Boyer, P.E., President, Kaskaskia Engineer-
                                                                   ing Group, LLC, on behalf of the American Council of Engineering Com-
                                                                   panies
                                                                     Chairman DeFazio and Ranking Member Graves:
                                                                     Thank you for the opportunity to testify before the committee today. It’s an honor
                                                                  to represent my firm and my colleagues in the nation’s engineering industry to you
                                                                  and the members of the committee.
                                                                     My name is Geri Boyer. I am the President and sole owner of Kaskaskia Engi-
                                                                  neering Group, a civil engineering, environmental, and contracting firm
                                                                  headquartered in Belleville, Illinois.
                                                                     I am testifying today on behalf of the American Council of Engineering Companies
                                                                  (ACEC)—the business association of the nation’s engineering industry. ACEC mem-
                                                                  ber firms drive the design of America’s infrastructure and built environment.
                                                                  Founded in 1906, ACEC is a national federation of 52 state and regional organiza-
                                                                  tions representing nearly 5,500 engineering firms and 600,000+ engineers, sur-
                                                                  veyors, architects, and other specialists nationwide.
                                                                                                            FIRM PROFILE
                                                                    I founded Kaskaskia Engineering Group, LLC (KEG) in 2006 with the mission of
                                                                  making the world a better place through the practice of engineering. Through part-
                                                                  nerships with our clients and regulatory agencies, we plan, design, and build
                                                                  projects that enhance communities, spur economic development, and respect the en-
                                                                  vironment. From the beginning, we have recruited highly skilled employees from a
                                                                  variety of public and private sector backgrounds. Armed with good experience, a
                                                                  great reputation and the Disadvantaged Business Enterprise Program, I have built
                                                                  an impressive portfolio of federal, state, local, and private project experience. Since
                                                                  2006, KEG has earned over $100 million in revenue and provides engineering serv-
                                                                  ices in Illinois, Iowa, Indiana, Kentucky, Michigan, Minnesota, Missouri, North Da-
                                                                  kota, Ohio, Oklahoma, and Wisconsin.
                                                                    KEG specializes in transportation engineering, traffic engineering, geotechnical
                                                                  engineering, structural engineering, environmental science, infrastructure analysis
                                                                  and planning, water resource management, right-of-way acquisition, and general
                                                                  highway construction.

                                                                                          DBE CERTIFICATIONS AND DOT EXPERIENCES
                                                                     KEG is a certified DBE through the Illinois Unified Certification Program, Iowa
                                                                  Department of Transportation, Indiana Department of Transportation, Kentucky
                                                                  Transportation Cabinet, Missouri Regional Certification Committee, Minnesota Uni-
                                                                  fied Certification Program, and Wisconsin Unified Certification Program.
                                                                     KEG is a certified Women Business Enterprise (WBE) through the Illinois Central
                                                                  Management Services, Indiana Department of Administration, Minnesota Central
                                                                  CERT Certification Program, Missouri Office of Equal Opportunity, Metropolitan
                                                                  Water Reclamation District of Greater Chicago, and the Women Business Enterprise
                                                                  National Council.
                                                                     KEG is a certified Small Business Enterprise (SBE) through the Kentucky Trans-
                                                                  portation Cabinet and Minnesota Central CERT Certification Program.
                                                                     KEG is a self-certified Women Owned Small Business (WOSB) and Economically
                                                                  Disadvantaged Women Owned Small Business (EDWOSB) through the Small Busi-
                                                                  ness Administration.
                                                                     In an ever changing and volatile business market, corporate growth and stability
                                                                  rely on diversification strategies, which often include providing services to multiple
                                                                  federal, state, and local agencies, as well as private corporations across regional, na-
                                                                  tional, and international markets. Diversification has long been a successful strat-
                                                                  egy for large businesses, and it is just as important for the survival and develop-
                                                                  ment of small firms.
                                                                     Using the opportunities that the DBE program has provided, I have diversified
                                                                  my company within the engineering and construction industry throughout the Mid-
                                                                  west. It’s this diversification that has helped me grow and weather economic storms.
                                                                  But it takes all these certification programs in multiple states in order for me to
                                                                  have the same opportunities as non-DBE firms.
                                                                     One challenge for DBE firms like mine that work in multiple jurisdictions is the
                                                                  lack of a unified approach to DBE certification. The amended 49 CFR Part 26 which
                                                                  was included in MAP–21 implemented a revised uniform certification application
                                                                  and reporting forms. However, even though there is a uniform process, there is not




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                                                                  a uniform certification. All the agencies I mentioned before use the uniform applica-
                                                                  tion but require the entire application again at different times of the year. The ap-
                                                                  plication must be current to equipment purchases, loans, and anything else a busi-
                                                                  ness uses to run their day-to-day operation. This creates unnecessary work for the
                                                                  DBE firm and the public agency who both have limited time and budget pressures.
                                                                  And with the rising problem of identity theft, it’s stressful to be sending all your
                                                                  personal information to multiple agencies in multiple states.
                                                                     I encourage the committee to consider additional reforms to streamline and sim-
                                                                  plify the DBE certification process, creating a program that is more efficient and
                                                                  effective for women and minority firms working for multiple agencies across mul-
                                                                  tiple states.

                                                                                                QUALIFICATIONS-BASED SELECTION
                                                                     It’s important to note the intersection of DBE program goals with federal and
                                                                  state procurement requirements for the contracting of engineering and design-re-
                                                                  lated services. Current laws require agencies using federal funds to follow Brooks
                                                                  Act qualifications-based selection (QBS) procedures for procuring engineering and
                                                                  design services. These rules apply to federal-aid highway, transit, and airport im-
                                                                  provement programs through various pieces of legislation approved by this com-
                                                                  mittee dating back to 1987. ACEC applauds this committee’s consistent and historic
                                                                  leadership in protecting and expanding QBS requirements on federal infrastructure
                                                                  programs. Most states have a ‘‘Mini Brooks Act’’ that apply the same selection pro-
                                                                  cedures to state programs.
                                                                     Under QBS, agencies select firms based on their experience, expertise, and dem-
                                                                  onstrated competence for the types of professional services required. They first
                                                                  evaluate and rank submitting firms’ statements of qualifications, performance data,
                                                                  and information regarding the proposed project or services. The contracting agency
                                                                  then selects and ranks firms based on those qualifications in accordance with the
                                                                  established/advertised criteria for the project and negotiates with the most highly
                                                                  qualified firm to arrive at a fair and reasonable price for the solicited services.
                                                                     QBS is the gold standard for procurement of professional engineering and design
                                                                  services. It helps small and DBE firms compete for work by providing us a forum
                                                                  to demonstrate the advantages we often have, including niche market expertise,
                                                                  ability to be nimble to meet deadlines, local knowledge, and involvement of senior
                                                                  level management. Quantitative studies have shown that QBS lowers total project
                                                                  costs and results in more satisfactory outcomes for owners.
                                                                     Current Federal Highway Administration (FHWA) regulations strike an effective
                                                                  balance between the QBS procurement framework and DBE program goals. Con-
                                                                  tracting agencies are required to give consideration to DBE consultants in the pro-
                                                                  curement of engineering and design related services contracts using federal-aid
                                                                  funds, but without set-aside contracts or quotas for DBE participation. State and
                                                                  local agencies set their own DBE program participation goals, as well as the method
                                                                  for achieving them, subject to FHWA approval. To the extent practical, a contracting
                                                                  agency must achieve DBE program participation goals through race and gender-neu-
                                                                  tral measures. DBE participation on all contracts funded with federal funds, wheth-
                                                                  er for professional or construction services, may be counted toward overall DBE pro-
                                                                  gram participation goals.
                                                                     FHWA regulations provide that when overall DBE program participation goals
                                                                  cannot be met through race-neutral measures, additional DBE participation on engi-
                                                                  neering and design-related services contracts may be achieved through either (1) the
                                                                  use of an evaluation criterion for DBE participation in the qualifications-based se-
                                                                  lection of firms, or (2) establishment of a contract DBE participation goal. Prime
                                                                  contractors can satisfy these measures through good-faith efforts to engage DBE
                                                                  participation.
                                                                     In its policy guidance, FHWA states that in order to ‘‘harmonize’’ QBS rules and
                                                                  DBE program implementation, a contracting agency may establish the use/participa-
                                                                  tion of certified and qualified DBE firms as an evaluation criterion of no more than
                                                                  ten (10) percent of the total evaluation criteria in assessing the qualifications of
                                                                  firms/teams to perform the solicited services.
                                                                     ACEC supports this current approach. It helps to achieve DBE program goals
                                                                  while still respecting the importance of emphasizing qualifications as the pre-
                                                                  eminent factor in selecting engineering firms. Increasing the weight of DBE as a
                                                                  selection criterion or adding specific set-asides, quotas, or mandates will diminish
                                                                  QBS and the successful project delivery that it promotes.




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                                                                                          ACEC DIVERSITY AND INCLUSION INITIATIVES
                                                                     Lastly, I want to draw the committee’s attention to the new Strategic Plan that
                                                                  ACEC approved in October 2019. Embodying inclusion and diversity is one of the
                                                                  five pillars of the new plan. Our express goal is that the Council is recognized as
                                                                  a welcoming organization where all members are included, involved and can achieve
                                                                  their full potential. The objectives include improving the diversity of ACEC leader-
                                                                  ship, enhancing the diversity of our membership, and increasing engagement of di-
                                                                  verse individuals from member firms.
                                                                     If we’re going to be able to sustain our profession and continue to support the
                                                                  transportation clients we serve, it’s imperative that we deliver on these goals. Diver-
                                                                  sity makes our companies and our industry stronger, and it makes us more appeal-
                                                                  ing to the next generation of professionals who we need to recruit. Federal DBE pro-
                                                                  grams, as explored by this hearing today, are one tool to help firms like mine bring
                                                                  those goals forward.
                                                                     I want to close by inserting here the statement that the Council made earlier this
                                                                  year, which encapsulates how I personally feel and what I strongly support about
                                                                  the engineering industry.
                                                                           ‘‘ACEC is committed to an inclusive and diverse engineering industry.
                                                                           The engineering profession has always been grounded in integrity, fair-
                                                                        ness, and service to community. Engineers build communities. We create
                                                                        space and by extension, we create social experience. We support equality
                                                                        and respect for all humankind. We believe in providing equitable opportuni-
                                                                        ties within our profession to support untapped potential both within our
                                                                        workforce and within the communities we serve. And we have the power
                                                                        to foster progress by breaking down the physical barriers that can inhibit
                                                                        economic and social equity.
                                                                           Those are the principles that have guided our community through this
                                                                        difficult time. Through ACEC we will embrace inclusion and diversity and
                                                                        continue to focus our members on ways to lift people up to become their
                                                                        best selves and to make our companies models of the values we embrace.’’
                                                                     Thank you again for the opportunity to testify.
                                                                                                             ATTACHMENT

                                                                                       NATIONAL UNIFIED DBE CERTIFICATION PROGRAM

                                                                                                 A WHITE PAPER BY ACEC ILLINOIS

                                                                                       BUSINESS PRACTICES—DBE/WBE/MBE COMMITTEE
                                                                  Authored by: Geri E. Boyer, P.E., Kaskaskia Engineering Group, LLC
                                                                  June 2016
                                                                  Last update: 6/25/2020

                                                                                                            INTRODUCTION
                                                                     In an ever changing and volatile business market, corporate growth and stability
                                                                  rely on diversification strategies, which often include providing services to multiple
                                                                  federal, state, and local agencies, as well as private corporations across regional, na-
                                                                  tional, and international markets. Diversification has long been a successful strat-
                                                                  egy for large businesses, but it is just as important for the survival and development
                                                                  of small firms.
                                                                     Firms owned by women and minority group members that want to employ diver-
                                                                  sification strategies are encumbered by the current DBE Certification process. Pub-
                                                                  lic agencies and small business owners have limited time and continued budget
                                                                  pressures. Time and budget constraints have significantly affected DBE certification
                                                                  in Illinois and its surrounding states. This white paper discusses how a national
                                                                  unified program could strengthen, streamline, and simplify the DBE certification
                                                                  program, creating a program that is more efficient and effective for women and mi-
                                                                  nority firms working for multiple agencies across multiple states.

                                                                                                             BACKGROUND
                                                                  History of DBE Program
                                                                    A policy of helping small businesses owned and controlled by socially and eco-
                                                                  nomically disadvantaged individuals, including minorities and women, participating
                                                                  in contracting opportunities created by Department of Transportation (DOT) finan-




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                                                                  cial assistance programs, has been in effect for more than 20 years. The Depart-
                                                                  ment, through its Operating Administrations, distributes billions of dollars annually
                                                                  to help finance thousands of projects across the country. Approximately 85 percent
                                                                  of the assistance dollars is for construction. The major portion of construction funds
                                                                  are allocated to state highway and transportation agencies for highway construction.
                                                                  The balance is provided to local public transit and airport authorities for mass tran-
                                                                  sit and airport facilities.
                                                                     In 1983, Congress enacted the first Disadvantaged Business Enterprise (DBE)
                                                                  statutory provision, which applied primarily to small minority-owned firms. This
                                                                  provision required the Department to ensure that at least 10% of the funds author-
                                                                  ized for the highway and transit Federal financial assistance programs be expended
                                                                  with DBE’s. In 1987, Congress re-authorized and amended the statutory DBE pro-
                                                                  gram to, among other changes, add women to the groups presumed to be disadvan-
                                                                  taged. Since 1987, the DOT has established a single DBE goal, encompassing both
                                                                  firms owned by women and minority group members.
                                                                     Primarily three major DOT Operating Administrations (OA’s) are involved in the
                                                                  DBE program. They are the Federal Highway Administration, the Federal Aviation
                                                                  Administration, and the Federal Transit Administration. The DOT DBE program is
                                                                  carried out by state and local transportation agencies under the rules and guidelines
                                                                  in the Code of Federal Regulations (Title 49, Part 26). The FAA also maintains a
                                                                  separate DBE program for concessions in airports (Title 49, Part 23).
                                                                     Title 49, Part 26 of the Code of Federal Regulation (49 CRF part 26) required all
                                                                  agencies in each state receiving DOT funds to participate in a state Unified Certifi-
                                                                  cation Program (UCP). Within three years of March 4, 1999, recipients of DOT fund-
                                                                  ing had to sign an agreement establishing the UCP for that state and submit the
                                                                  agreement to the Secretary for approval. The agreement provided for the establish-
                                                                  ment of a UCP, which met all the requirements. The agreement had to specify that
                                                                  the UCP would follow all certification procedures and standards; that the UCP
                                                                  would cooperate fully with oversight, review, and monitoring activities of DOT and
                                                                  its operating administrations; and that the UCP would implement DOT directives
                                                                  and guidance concerning certification matters. The agreement also committed recipi-
                                                                  ents to ensuring that the UCP has sufficient resources and expertise to carry out
                                                                  the requirements.
                                                                  DBE Unified Certification Program (UCP)
                                                                     The purpose of the UCP is to provide ‘‘one-stop shopping’’ to applicants for certifi-
                                                                  cation. The program was designed so that if a firm was certified using a UCP agen-
                                                                  cy in a state, they would only have to apply to one federally-funded agency within
                                                                  that state to work with all UCP member agencies. In Illinois, the UCP is made up
                                                                  of five US DOT-funded agencies, the Illinois Department of Transportation (IDOT),
                                                                  City of Chicago, Chicago Transit Authority (CTA), Metra, and Pace. The Regional
                                                                  Transportation Authority (RTA) is also part of the IL UCP, but is a non-certifying
                                                                  agency. Other states have very similar programs made up of all agencies that re-
                                                                  ceive federal funds.
                                                                  Non-DOT-funded Certifying Agencies
                                                                     Within every state, there are also non-DOT-funded agencies. Some will accept the
                                                                  DOT’s state implemented DBE Certification Program, and some have their own cer-
                                                                  tification process. Several non-DOT-funded agencies have chosen to certify women
                                                                  business enterprises (WBE), minority business enterprises (MBE), and Business En-
                                                                  terprise owned by People with Disabilities (BEPD). In Illinois, the non-DOT-funded
                                                                  certifying agencies are Central Management Services (CMS), City of Chicago, and
                                                                  Cook County.
                                                                  Interstate Certification Rule
                                                                     While the DBE program was always a national program, state specific adminis-
                                                                  trative requirements tended to impair a DBE firm’s ability to fully compete for busi-
                                                                  ness opportunities in other states. In response to longstanding concerns from the
                                                                  DBE community, the USDOT issued a proposed rule aimed at breaking down these
                                                                  barriers. On January 1, 2012, the interstate certification provision (49 CRF 26.85)
                                                                  went into effect. Its intent was to clear up administrative obstacles to certification
                                                                  that were undermining important program objectives. The rule furthered the fol-
                                                                  lowing fundamental objectives of the DBE program.
                                                                     (1) Facilitated the ability of DBE firms to compete for DOT-assisted contracting.
                                                                     (2) Reduced administrative burdens and costs on small businesses that sought to
                                                                         pursue contracting opportunities in other states.
                                                                     (3) Fostered greater consistency and uniformity in the application of certification
                                                                         requirements, while maintaining program integrity.




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                                                                    The ultimate purpose of the interstate certification rule was to facilitate certifi-
                                                                  cation of currently certified firms in other jurisdictions. Interstate certification was
                                                                  not meant to be an automatic reciprocity in the sense that each state must honor
                                                                  the other states’ certification decisions without review. Rather, the rule created a
                                                                  rebuttable presumption, such that a firm certified in its home state is eligible to be
                                                                  certified in other states to which it applies.
                                                                    The Department once again amended 49 CFR Part 26, which went into effect on
                                                                  November 3, 2014. The final rule improved DBE program implementation in the fol-
                                                                  lowing three major areas.
                                                                    (1) Revised the uniform certification application and reporting forms and created
                                                                         a uniform personal net worth form for use by applicant owners, which collect
                                                                         the data required by the Department’s Surface Transportation Reauthoriza-
                                                                         tion, Moving Ahead for Progress in the 21st Century Act (MAP–21).
                                                                    (2) The rule strengthened the certification-related program provisions, which in-
                                                                         cludes adding a new section authorizing summary suspensions under specified
                                                                         circumstances.
                                                                    (3) The rule modified several other program provisions concerning such subjects
                                                                         as overall goal setting, good faith efforts, transit vehicle manufacturers, and
                                                                         counting for trucking companies.
                                                                                                              PROBLEMS
                                                                     Over the last several years, the DOT has made a concerted effort to improve the
                                                                  DBE program. Many hurdles have already been overcome, but there are still prob-
                                                                  lems to be solved to make this program even more useful to small businesses owned
                                                                  and controlled by socially and economically disadvantaged individuals. Problems
                                                                  that are burdensome and limit the success of a DBE company are 1) Confusion be-
                                                                  tween DBE Certification and Prequalification, 2) Duplication of Applications for
                                                                  DBE Certification, and 3) Slow Responsiveness of Reviewing Agencies.
                                                                     The following are a few examples to support the need for additional changes to
                                                                  the DBE program.
                                                                  1) Confusion between DBE Certification and Prequalification
                                                                     The Bureau of Small Business Enterprises administers IDOT’s DBE program.
                                                                  IDOT, like all other state DOT’s, is tasked with the certification of DBE firms and
                                                                  the prequalification of firms wanting to bid on contracts and/or offer their services
                                                                  to the department. DBE certification and DOT prequalification are performed by
                                                                  two different units within IDOT. While there is some overlap in the certification and
                                                                  prequalification processes for DBE firms, the certification process is generally con-
                                                                  cerned with establishing if a business qualifies as ‘‘disadvantaged,’’ and the
                                                                  prequalification process confirms if an applicant has resources and experience to
                                                                  self-perform each specific service. If you are a DBE engineering/architectural con-
                                                                  sultant, you are certified as a DBE through the Bureau of Small Business Enter-
                                                                  prises and prequalified through the Bureau of Design and Environment. The Bu-
                                                                  reau of Design and Environment prequalifies firms in multiple categories of service.
                                                                     If you are a DBE contractor, you are certified as a DBE through the Bureau of
                                                                  Small Business Enterprises and prequalified through the Bureau of Construction.
                                                                  The prequalification process of a contractor is governed by Title 44 Illinois Adminis-
                                                                  trative Code Section 650. The prequalification process does not apply to subcontrac-
                                                                  tors. However, DBE subcontractors are required to be certified through the Bureau
                                                                  of Small Business Enterprises but only need to be registered through the Bureau
                                                                  of Construction to perform work for IDOT.
                                                                     Currently, the Bureau of Small Business Enterprises utilizes the uniform certifi-
                                                                  cation application and forms required in the final rule. These forms require the ap-
                                                                  plicant to fill out a listing of NAICS codes for which they are able to self-perform.
                                                                  The NAICS codes are used on the UCP online directory and generally correlate with
                                                                  the prequalification categories. However, the Bureau of Small Business Enterprises
                                                                  has taken on the responsibility of prequalifying subcontractors through the certifi-
                                                                  cation process. Instead of verifying NAICS codes, they are verifying the resources
                                                                  and experience of a DBE subcontractor to complete an IDOT specific contract pay
                                                                  item. They are also certifying DBE subcontractors/contractors in work classifications
                                                                  that are not in alignment with the Bureau of Construction. These additional re-
                                                                  quirements are limiting the expansion of DBE subcontractors/contractors.
                                                                  2) Duplication of Applications for DBE Certification
                                                                     The Illinois Department of Central Management Services (CMS) Business Enter-
                                                                  prise Program (BEP) is now certifying businesses owned by women, minorities, and
                                                                  persons with disabilities. They claim that with their certification a company will
                                                                  have the opportunity to participate in the State’s 20% minority, female, and persons




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                                                                  with disabilities goal. Also, a company would be listed in their BEP directory that
                                                                  is used by state agencies, universities, and other large firms when they are looking
                                                                  for businesses owned by females, minorities, and persons with disabilities. This pro-
                                                                  gram’s eligibility is available to companies whose gross annual sales are less than
                                                                  $75 million, which far exceeds the limit of $23.98 million in gross annual receipts
                                                                  required by the new federal form and exceeds the Small Business Administration
                                                                  size standard for all transportation-related industries.
                                                                     CMS states that if a firm is currently certified with the City of Chicago, Cook
                                                                  County, Chicago Transit Authority, METRA, PACE, IDOT, Women Business Devel-
                                                                  opment Council, or Chicago Minority Business Development Council, you can com-
                                                                  plete the Recognition Certification Application to qualify for the ‘‘limited’’ Business
                                                                  Enterprise Certification. CMS also offers the BEP Full Certification Application,
                                                                  which effectively requires the same information as the UCP, but with different
                                                                  forms. Both of these application processes certify businesses as MBE, FBE, Female
                                                                  and Minority Business Enterprise (FMB), and/or Persons with Disability Business
                                                                  Enterprise (PBE). Although a firm may choose to be certified by CMS using the rec-
                                                                  ognition certification, this certification is not considered a valid certification by
                                                                  agencies in other states.
                                                                     For example, the Indiana Department of Administration only recognizes CMS as
                                                                  the official M/WBE certifying agency for the State of Illinois. As part of their appli-
                                                                  cation, the Illinois firm must provide a copy of the Illinois certification conducted
                                                                  by CMS. If the firm was initially awarded certification by IDOT and the firm used
                                                                  the CMS Recognition Certification, the firm cannot apply for M/WBE certification
                                                                  with the State of Indiana through the Indiana Department of Administration. Also,
                                                                  the Indiana Minority & Women’s Business Enterprise Division does not accept on-
                                                                  site reports from the City of Chicago, PACE, Metra, the Chicago Transit Authority,
                                                                  or the Chicago Minority Business Development Council, making the ability for an
                                                                  Illinois DBE firm to work in Indiana as an M/WBE firm very difficult.
                                                                     The City of Chicago is a member of the IL UCP, which certifies DBE firms.
                                                                     The City also has the following certifications:
                                                                     • MBE
                                                                     • WBE
                                                                     • Business Enterprise owned by People with Disabilities (BEPD)
                                                                     • Airport Concession Disadvantaged Business Enterprise (ACDBE)
                                                                     The MBE/WBE/BEPD certification is needed to work on city-funded contracts and
                                                                  the DBE/ACDBE certification is needed to work on state and federally funded con-
                                                                  tracts. If a woman-owned DBE firm that is already certified through the IL UCP
                                                                  and CMS wants to work on a city-funded project, the firm must also apply to the
                                                                  City of Chicago’s WBE program.
                                                                  3) Slow Responsiveness of Reviewing Agencies
                                                                     The goal of the DBE program is to give individuals who own disadvantaged busi-
                                                                  nesses the opportunity to grow their business. DBE firms are taking advantage of
                                                                  the goals of the DBE program and looking for opportunities to expand their busi-
                                                                  nesses outside of their home-based state. A single firm could apply to as many as
                                                                  50 DBE offices, which places additional burden on certifying offices. Additionally,
                                                                  as state DOTs replace and/or reduce staff the burden increases.
                                                                     State personnel are struggling to review the applications for home-based firms in
                                                                  a timely manner. Adding a maximum 60 day determination period for non-home-
                                                                  based firms set forth in 49 CRF 26.85 is creating an impossible situation for review-
                                                                  ing agencies. There have been cases in which it has taken over a year to issue a
                                                                  DBE certification.

                                                                                                               SOLUTION
                                                                    A proposed solution is to create a National Unified DBE Certification Program
                                                                  (National UCP) to serve as a ‘‘one-stop shopping’’ to applicants for certification. Any
                                                                  state agency using the unified certification application could be a coordinating mem-
                                                                  ber of the National UCP, and its certification would be recognized as a National
                                                                  UCP. Under a National UCP, the firm applies one time for certification as DBE
                                                                  with their participating cognizant agency or a national organization. If approved,
                                                                  that certification would be honored by all recipients of federally funded and non-fed-
                                                                  erally funded projects in all states. The National UCP would only certify firms using
                                                                  the unified certification application. Prequalification, determination if an applicant
                                                                  has the requisite resources and experience to complete the service/category as re-
                                                                  quired, would remain with the contracting agency.
                                                                    The certification and record would be held by a national agency/organization, such
                                                                  as the Small Business Administration (SBA). The SBA already have systems in




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                                                                  place to review a standard application, evaluate its compliance with federal regula-
                                                                  tions, and certify its credibility. It currently is certifying Women Owned Small Busi-
                                                                  ness (WOSB), 8(A), and HUBZone. It has the capacity for the upload of documents
                                                                  necessary for annual renewal (Affidavit of Continued DBE Certification). This proc-
                                                                  ess would significantly reduce the time and effort necessary to become licensed in
                                                                  multiple states.
                                                                     B2GNow, a cloud-based software system for real-time collection, tracking and
                                                                  analysis of compliance data, currently maintains compliance of DBE firms with fed-
                                                                  eral, state, and local diversity programs. It is a tool that could serve as a DBE cer-
                                                                  tification record holder for federal and state agencies to utilize.
                                                                     Certifying agencies that do not use unified certification application or do not
                                                                  choose to be a coordinating member of the National UCP could continue to certify
                                                                  DBE. If a firm does not intend to work with multiple agencies in multiple states,
                                                                  it might not be advantageous to certify with a national organization. A certified firm
                                                                  that had been certified by a non-coordinating local certifying agency could still apply
                                                                  to have their record held by the national organization.
                                                                     Although this White Paper is focused on DBE firms certified to do engineering
                                                                  and contracting, any type of DBE business could benefit from a National UCP.

                                                                                                               SOURCES
                                                                  ‘‘Disadvantaged Business Enterprise (DBE) Program.’’ United States Department of
                                                                  Transportation, n.d. Web. 08 March 2015.
                                                                  ‘‘Final Rule Changes Effective as of November 3, 2014.’’ United States Department
                                                                  of Transportation—Departmental Office of Civil Rights, n.d. Web. 8 March 2015.
                                                                  Indiana Department of Administration Division of Supplier Diversity, Application
                                                                  for Certification, n.d. Web. 1 March, 2015
                                                                  ‘‘Small Business Size Standards’’ US Small Business Administration, n.d. Web. 1
                                                                  March, 2015

                                                                    Mr. DEFAZIO. Thank you, Ms. Boyer.
                                                                    Ms. Lerdahl, you may proceed.
                                                                    Ms. LERDAHL. Good morning, Chairman DeFazio and committee
                                                                  members. My name is Mary Lerdahl, currently the owner of Emer-
                                                                  ald Consulting Services in the Seattle area.
                                                                    Prior to starting my firm to help DBEs navigate the challenges
                                                                  of the construction industry, I was an electrical contractor for 22
                                                                  years. I started my firm, DBE Electric, in 2009 during the Great
                                                                  Recession, after losing my share of another company as the result
                                                                  of a marital dissolution. The firm DBE Electric performed 122
                                                                  projects valued at over $80 million over the course of 9 years, until
                                                                  I was forced out of business as a result of WSDOT, Washington
                                                                  State Department of Transportation’s, waiver to exclude White
                                                                  women from the DBE program.
                                                                    The waiver was approved by U.S. DOT in 2016 after, in my opin-
                                                                  ion, a faulty disparity study that included projected revenue from
                                                                  the two largest mega-projects in Washington State history.
                                                                    From the time the waiver was enacted in June 2017 to mid-2018,
                                                                  my firm’s revenues went from $9 million a year to zero. Without
                                                                  the designation of a DBE, I couldn’t win a single project, even with
                                                                  my successful track record. I was the only female contractor in the
                                                                  State that performed complex, heavy highway electrical projects,
                                                                  traffic signals, illumination, intelligent transportation, and tolling
                                                                  systems.
                                                                    By September of 2017, a new disparity study showed that White
                                                                  women were not over-represented, and WSDOT asked U.S. DOT to
                                                                  rescind the waiver on September 11, 2017.
                                                                    I personally made two trips to Washington, DC, to meet with
                                                                  U.S. DOT, the Federal Highway Admnistration, and Terence Cole-




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                                                                  man of the Department of Assistant General Counsel, all to no
                                                                  avail. When U.S. DOT finally denied WSDOT’s request to rescind
                                                                  the waiver on December 13, 2019, it was far too late to save my
                                                                  business and the businesses of other White women in our State.
                                                                     Because of the DBE program, I participated in building the SR
                                                                  520 floating bridge, the longest floating bridge in the world, with
                                                                  Kiewit. The contract was a design-build project, and my contract
                                                                  value was $14 million. It was a great example of how a small DBE
                                                                  firm like mine could work together with a large prime contractor
                                                                  to grow, learn, and build a project that all contractors could be
                                                                  proud of.
                                                                     At the same time as I was building the bridge project, I was also
                                                                  working on the SR 99 Bored Tunnel project, valued at $1.6 billion,
                                                                  with Seattle Tunnel Partners, the joint venture with Dragados and
                                                                  Tutor-Perini. I have experienced many incidents, overt and subtle,
                                                                  of discrimination in many years, but this one was the worst. Short-
                                                                  ly after winning the tunnel project, Tutor-Perini purchased Fisk
                                                                  Electric, a large firm out of Houston.
                                                                     At an initial DBE outreach meeting, a Fisk representative bla-
                                                                  tantly stated that they were only interested in receiving labor-only
                                                                  bids from DBE firms, thus exposing the DBE firms to more risk
                                                                  and less profit from the less risky material purchases portion of the
                                                                  work. A local subcontractor, JH Kelley, was brought in to sub out
                                                                  to the two electrical firms owned by the joint venture—Fisk being
                                                                  owned by Tutor-Perini, and SICE, being owned by Dragados in
                                                                  Spain—to minimize the appearance of self-dealing.
                                                                     While my firm ultimately performed $977,246 of work on the
                                                                  project, public records show that SICE performed $34,315,556, and
                                                                  Fisk performed $106,057,656. STP solicited bids from DBE firms
                                                                  like mine in order to show good faith efforts, only to self-perform
                                                                  much of the work.
                                                                     I experienced sexual advances while on the project site, while su-
                                                                  pervising my crews.
                                                                     Getting paid was slow and difficult, and begging was necessary,
                                                                  as they always had some excuse. They needed two signers, who
                                                                  were rarely both there, for example.
                                                                     Finally, while my firm was working on a change order to convert
                                                                  temporary generator power to permanent power feeding refrig-
                                                                  erated shipping containers, I experienced discrimination at the
                                                                  hands of Mike Kerschner, a project manager for Tutor-Perini. He
                                                                  was pressuring me to proceed with ordering expensive Siemens
                                                                  electrical gear, but my change order hadn’t yet been signed for that
                                                                  work, and STP owed me over $80,000. It was very past due.
                                                                     I put in a call to the local electrical union for an electrician to
                                                                  do the power cutover, but the union wouldn’t fill my call for labor.
                                                                  I met with Mike Kerschner face to face to discuss the ongoing fail-
                                                                  ure of the union to respond to my call. And after looking me up
                                                                  and down in a sexually suggestive manner, he informed me that
                                                                  if I didn’t have labor on the job the next day, he would take over
                                                                  my work.
                                                                     The next day my crews were shut out of the job, and my equip-
                                                                  ment was taken over. I also received a letter from the union that
                                                                  day, pulling manpower from all of my jobs, including the bridge
                                                                  project. Fortunately, Kiewit intervened, and didn’t allow that to




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                                                                  happen, so my company lived to see another day. I later learned
                                                                  that Fisk took over my work, and that Tutor-Perini had colluded
                                                                  with the union to make this happen.
                                                                    My firm finally got paid the $80,000 owed by STP, only because
                                                                  of a Federal Highway Administration investigation into WSDOT’s
                                                                  mishandling of the DBE program and the project.
                                                                    Tutor-Perini has been found guilty of DBE fraud on several occa-
                                                                  sions across the country, and has paid millions of dollars in fines.
                                                                  In my opinion, the only reason Tutor-Perini hasn’t been disbarred
                                                                  from Federal contracting is because of the powerful connection be-
                                                                  tween this company and a certain U.S. Senator.
                                                                    In closing, the DBE program is essential to allow small firms
                                                                  owned by women and minorities to compete for a few pennies of
                                                                  the highway dollar. However, it must be administered with strict
                                                                  compliance, starting with the Federal Highway Administration’s
                                                                  enforcement of CFR part 26.
                                                                    State and local programs’ field compliance need to start from the
                                                                  bottom up, listening to the DBE firms and the field inspectors from
                                                                  each agency, instead of from the top down, so the issues can be re-
                                                                  solved as soon as possible to avoid business failure due to non-
                                                                  payment and discrimination during disputes.
                                                                    Waivers should never again destroy a DBE firm, separating the
                                                                  DBE communities.
                                                                    Unfortunately, due to human nature, discrimination will prob-
                                                                  ably always be with us. But this program is effective, and the com-
                                                                  mittee has an opportunity to strengthen it and make it more ac-
                                                                  countable and transparent to participating firms and taxpayers.
                                                                  Thank you for the opportunity to share my story, and I would be
                                                                  happy to share any other information you would like. Thank you.
                                                                    [Ms. Lerdahl’s prepared statement follows:]
                                                                                                            f

                                                                       Prepared Statement of Mary T. Lerdahl, President, Emerald Consulting
                                                                                                  Services, LLC
                                                                     Good morning Chairman DeFazio and members of the Committee:
                                                                     My name is Mary Lerdahl and I formerly owned an electrical contracting firm in
                                                                  the Seattle area named DBE Electric. I started the firm in November 2009 during
                                                                  the ‘‘Great Recession’’ after losing my share of a similar firm as a result of a marital
                                                                  dissolution. Altogether I had been an electrical contractor since 1996, for a total of
                                                                  22 years before I was driven out of business as a result of WSDOT’s (Washington
                                                                  State Department of Transportation) decision to waive white women out of the fed-
                                                                  eral DBE program. My company focused exclusively on highway electrical projects;
                                                                  traffic signal systems, illumination, Intelligent Transportation Systems. From 2009
                                                                  to 2018 (the year the company closed) my firm successfully completed 122 projects
                                                                  valued at nearly $80 million. My firm never failed to complete a project on time and
                                                                  finished all contracted projects with the exception of two, which were the result of
                                                                  blatant discrimination, which I will explain later in greater detail. The typical size
                                                                  of projects performed were $500,000–$2,000,000.
                                                                     The highlight of my career was building the SR 520 Floating Bridge project, a de-
                                                                  sign build project with Kiewit, the longest floating bridge in the world. The overall
                                                                  project was about five years long; about 2 years in design and 3 years in actual con-
                                                                  struction. The initial contract was $8.9 million with the final contract value being
                                                                  $14 million. This project had an 8% mandatory DBE goal, which is why my firm
                                                                  had a ‘‘place at the table’’, along with my company’s proven track record of projects
                                                                  with Kiewit and other firms. I learned so much from that project, both technically
                                                                  as well as what it was like to ‘‘work with the big boys’’. As doors opened to me be-
                                                                  cause of my certification as a DBE firm, I could see a bright future ahead for my
                                                                  company after the successful completion of the project.




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                                                                     Kiewit treated me fairly and with respect and was a good example of how a mega
                                                                  firm and a small, DBE firm could work together to build a great project that all
                                                                  parties could be proud of.
                                                                     At the same time I was working on the design portion of the bridge project, I was
                                                                  working on the SR 99 Bored Tunnel project with Seattle Tunnel Partners, (STP) a
                                                                  joint venture between Tutor-Perini and Dragados.
                                                                     The project had a value of $1.6 Billion and a 8% DBE Condition of Award goal.
                                                                     Initially my firm worked as a second tier subcontractor to one of the larger local
                                                                  general contractors, and then directly for STP. The contrast between Kiewit and
                                                                  STP couldn’t be more stark. My firm faced discrimination in many ways throughout
                                                                  my 2 year experience on the tunnel project, finally culminating in a meeting re-
                                                                  quired by WSDOT as a result of the Conciliatory Change Order required by FHWA
                                                                  after an investigation by FHWA showed widespread discrimination by STP against
                                                                  DBE firms. Some of the specific instances of discrimination that I personally suf-
                                                                  fered and my firm experienced are as follows:
                                                                     1. Initial DBE ‘‘outreach’’ meetings in which Fisk Electric, a large electrical con-
                                                                        tracting firm purchased by Tutor-Perini shortly after winning the project, stat-
                                                                        ed outright that they were only interested in ‘‘labor only’’ bids from DBE firms,
                                                                        thereby denying DBE firms the opportunity for profit on the less risky material
                                                                        purchases portion of the project.
                                                                     2. Sexual advances made directly to me by STP supervisors while I was in the
                                                                        field supervising operations.
                                                                     3. Slow payment processing and a feeling of ‘‘begging’’ to get paid during the di-
                                                                        rect visits to STP’s offices because of intentionally slow payment processing; for
                                                                        example, two check signers who were hard to track down, no option for ACH
                                                                        payments, delayed processing of change orders while being demanded to per-
                                                                        form work by STP supervisors prior to the change orders being executed.
                                                                     4. Invitations to bid electrical systems inside the tunnel that were virtually iden-
                                                                        tical to the work I was performing on the bridge project just to provide ‘‘good
                                                                        faith efforts’’ and allow SICE, an electrical firm owned by Dragados, to self-
                                                                        perform the work. My firm wasted countless hours bidding this design-build
                                                                        work when STP knew all along that they would never use my firm to build
                                                                        the work.
                                                                     5. The final incident occurred when my firm was working to convert electrical
                                                                        power from temporary diesel generators to provide power to the refrigerated
                                                                        containers being unloaded at the Seattle waterfront to permanent power. Since
                                                                        my crews primarily worked on signal systems, I put in a call to the local IBEW
                                                                        (electrical workers) union for a call for a journey level electrician with experi-
                                                                        ence with such work; the union failed to fill my call for labor and after a week
                                                                        without getting my call for labor filled I had a meeting with the project super-
                                                                        intendent, Mike Kerschner to discuss the situation. At this time there was a
                                                                        pending change order for $200,000 with specialized Siemens equipment that I
                                                                        wasn’t going to order the equipment until the change order was approved.
                                                                        Mike Kerschner had been pressuring me to order it anyway without a change
                                                                        order but I refused. When I met with him regarding the power conversion issue
                                                                        due to the union’s continued failure to supply the requested labor, he was
                                                                        openly hostile to me while at the same time giving me unwanted top to bottom
                                                                        looks that were sexual in nature. He informed me that if I didn’t get the need-
                                                                        ed labor that he would take over my work. The next day I received a letter
                                                                        from the IBEW stating that they were pulling all manpower off ALL of my jobs
                                                                        because I had failed to make a trust payment, which was only two weeks late
                                                                        due to STP’s failure to pay my company. The union was colluding with STP
                                                                        and Fisk Electric to drive my firm off the tunnel job, and there were other
                                                                        large electrical contractors who were hoping to take over my SR 520 Floating
                                                                        Bridge Project. Fortunately Kiewit didn’t allow that to happen, so the outright
                                                                        destruction of my business didn’t happen at that time. In retrospect I realize
                                                                        that my firm was a threat to the assertion that DBE firms didn’t have the
                                                                        technical expertise to perform on such a large, technically challenging projects
                                                                        because I was doing just that across the water. By the time I was locked out
                                                                        of the job STP owed my firm over $80,000 and I am certain that the only rea-
                                                                        son I eventually got paid was because of the focus of FHWA’s investigation into
                                                                        STP and WSDOT’s administering of the DBE program. Public records show
                                                                        that SICE, Inc. did $34,315.556.53 on the project and Fisk Electric did
                                                                        $106,057,656.02, while my firm, DBE Electric did $977,246.59. Both SICE and
                                                                        Fisk were hired by a local company, JH Kelley, in order to minimize the ap-
                                                                        pearance of the self-dealing by STP’s ownership of Fisk and SICE. It is widely
                                                                        known that Tutor-Perini has been found guilty of DBE fraud in other areas of
                                                                        the country and has paid millions of dollars in fines; our state simply wasn’t




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                                                                        prepared to handle the assortment of dirty tricks that Tutor-Perini pulled in
                                                                        order to line their own pockets while appearing to be employing ‘‘good faith ef-
                                                                        forts’’ among the DBE firms who were hoping for a piece of the pie.
                                                                     While the SR 99 Bored Tunnel was one of the worst examples of discrimination
                                                                  I experienced, it certainly wasn’t the only one. I could spend hours citing examples,
                                                                  but since my time for testimony before the committee is limited, I will share just
                                                                  one more in detail. My firm was working on a city project that had federal funds
                                                                  administered through WSDOT Local Programs. The contract value was approxi-
                                                                  mately $1.2 million. The general contractor was falling behind the critical path
                                                                  schedule as originally submitted and approved by the city, and changed the sched-
                                                                  ule to place the blame for the delays on my firm. When I challenged the project
                                                                  manager and eventually the company president regarding the disputed schedule
                                                                  and delays, they didn’t want to meet with me, only with my male project super-
                                                                  intendent. The dispute few uglier by the day, and resulted in the general contractor
                                                                  failing to pay my firm nearly $300,000 at one point. The general contractor sought
                                                                  to have my contract terminated, and WSDOT became involved in their request in
                                                                  accordance with CFR Part 26 rules. In the interim, the general contractor contacted
                                                                  my main pole supplier and threatened not to pay for the $500,000 pole order if they
                                                                  placed it with my firm. Due to the on-going hostilities WSDOT allowed the contract
                                                                  to be terminated, but only for convenience, not for cause. I then brought suit again
                                                                  the contractor and eventually was awarded the $300,000 owed and attorney’s fees
                                                                  after 3 years of legal battles. I know that the only reason this situation wasn’t able
                                                                  to be resolved without litigation was because I am female and stood up for my com-
                                                                  pany. I had done business with this company before when I was in business with
                                                                  my ex-husband, and when issues came up as they do in construction, they were able
                                                                  to be resolved, ‘‘man to man’’. Not so when I was the principal. The general con-
                                                                  tractor even stated in front of WSDOT attorney’s during meetings to resolve the
                                                                  issues that ‘‘the only reason he hired me was because he had to make the goal’’.
                                                                  I’d also like to mention that this man himself was a minority and had been in the
                                                                  DBE program before graduating from the program. He was openly hostile to women
                                                                  in the construction industry, unless they worked in the office, not in the field and
                                                                  certainly not being an owner herself.
                                                                     There are many other instances of outright and subtle discrimination that I could
                                                                  cite, but unfortunately the worst was when the agency that was supposed to help
                                                                  firms like mine actually caused the destruction of my business by enacting the waiv-
                                                                  er to exclude white women from the federal DBE program in Washington State.
                                                                  When the waiver was enacted in June 2017 after being approved by Secretary Foxx
                                                                  on December 16, 2016, my firm was doing approximately $8,000,000 in revenue.
                                                                  After June 2017 when my firm was no longer considered eligible for ‘‘Condition of
                                                                  Award’’ projects with DBE goals, I did not win one single bid, including several that
                                                                  I knew I was the low bidder for. This is when the full knowledge of the level of
                                                                  discrimination in the highway construction industry really sunk in. I had fought
                                                                  battle after battle for years, but surely I thought that my company’s proven track
                                                                  record of successful projects would see me through this unfortunate and unfair pe-
                                                                  riod, but I was dead wrong. I did everything I could to get work, begging contractors
                                                                  to use me on their projects. I had been the only female electrical contractor doing
                                                                  major highway electrical projects, and now the ‘‘good ole boys’’ were making up for
                                                                  lost time getting on projects that I formerly might have won. When WSDOT ex-
                                                                  cluded my firm from participation, those project dollars didn’t go to another DBE
                                                                  firm; they went to larger firms in our region doing $50–600 million in annual reve-
                                                                  nues! In the space of 18 awful months, my company died a death of a thousand cuts
                                                                  as I watched my firm die, month after month. I had to lay off my daughter, whom
                                                                  I had hoped to pass the company on to, along with other family members and em-
                                                                  ployees. Word spread at the IBEW union that my company was going to go under,
                                                                  so getting quality labor dispatches to finish my jobs was extremely difficult. I could
                                                                  have easily filed for bankruptcy but I wanted to finish my projects and cause as
                                                                  least amount of collateral damage as possible for my employees, general contractors
                                                                  with which I had project backlog with, and the public agencies who were counting
                                                                  on the projects to be finished. By the fall of 2018 it was finished and there was noth-
                                                                  ing left to show for my years of hard work except exposure to creditors due to the
                                                                  personal guarantees typically required by DBE firms due to credit discrimination.
                                                                  During the period of the demise of my business I made two trips to Washington DC
                                                                  to meet with FHWA and USDOT to plead for WSDOT’s request to rescind the waiv-
                                                                  er dated September 13, 2017. I met with Terence Coleman of the Department of As-
                                                                  sistant General Counsel to share how this delay in responding affirmatively to
                                                                  WSDOT’s request to rescind the waiver was causing my business failure, along with
                                                                  many other women in the region, all to no avail.




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                                                                     Finally on December 13, 2019 USDOT denied WSDOT’s request to rescind the
                                                                  waiver; while the reasons cited speak for themselves, there is no mention whatso-
                                                                  ever of the skewing of the 2009–2011 data included in the flawed study, which in-
                                                                  cluded both the DBE awarded dollars of the two largest projects in Washington
                                                                  state history (SR 99 Bored Tunnel and SR 520 Floating Bridge) as well as docu-
                                                                  mented DBE fraud purported by a white woman trucking firm that was eventually
                                                                  decertified as a DBE firm by WSDOT.
                                                                     In summary, while I am a positive person, I am also a realist. I had hoped to
                                                                  see discrimination end during my lifetime, unfortunately it seems to be getting
                                                                  worse in our society. While one can only change oneself to be a fair and just person,
                                                                  we can’t change human nature. This committee through the federal DBE program
                                                                  has an opportunity to make a big difference in small DBE firms. I don’t think it’s
                                                                  realistic to expect to ‘‘level the playing field’’, but it is realistic to make a significant
                                                                  impact and hold to account the large general contractors who complain about the
                                                                  DBE contracting community getting a few pennies of the federal contracting dollar.
                                                                  While it is too late for my firm to benefit from the return of white women as Condi-
                                                                  tion of Award as of October 1, 2020, I am determined to do all that I can to coach
                                                                  and mentor DBE firms as they navigate the difficult construction industry and
                                                                  avoid being used and abused by some of the unethical prime contractors who seek
                                                                  to abuse ‘‘good faith efforts’’ for their own gain.
                                                                     I had hoped to participate in building the Interstate Bridge Replacement program,
                                                                  replacing the aging bridge connecting Washington and Oregon after my successful
                                                                  completion of the SR 520 Floating Bridge. When I left Oregon as a young girl in
                                                                  1968 to move to Washington with my mother and younger siblings she related that
                                                                  I said ‘‘Seattle is my town’’ when I saw the Space Needle. Now instead of helping
                                                                  to build a physical bridge, I hope that I can use my experience to build a bridge
                                                                  between DBE firms and the good general contractors like Kiewit that do believe in
                                                                  this program to help empower DBE firms to grow in the way that the DBE program
                                                                  was intended for.
                                                                     Thank you for your time.

                                                                     Mr. DEFAZIO. Thank you, Ms. Lerdahl.
                                                                     Mr. Ali, you may proceed for 5 minutes.
                                                                     [Pause.]
                                                                     Mr. DEFAZIO. You have to unmute.
                                                                     Mr. ALI. Oh, sorry. Oh, am I unmuted?
                                                                     Mr. DEFAZIO. You are unmuted now.
                                                                     Mr. ALI. I apologize for that, Chairman. I have my own feelings
                                                                  about Cisco.
                                                                     Chairman DeFazio, thank you, and members of the committee.
                                                                  My name is Farad Ali, chairman of the advisory Government Af-
                                                                  fairs Committee for the Airport Minority Advisory Council. I am
                                                                  also the immediate past chairman of the Raleigh Durham Inter-
                                                                  national Airport Authority. Thank you for providing AMAC the op-
                                                                  portunity to participate in the committee’s hearing today.
                                                                     AMAC was founded 36 years ago to combat discrimination in the
                                                                  airport industry. Since its founding, AMAC has been in the fore-
                                                                  front of every national policy discussion concerning this ubiquitous
                                                                  nature of discrimination in the transportation industry, and in par-
                                                                  ticular, concerning airport contracting opportunities for small and
                                                                  disadvantaged business enterprises.
                                                                     AMAC’s members include DBEs and airport concessionaire
                                                                  DBEs, non-DBEs, airports, and airport officials, and all others who
                                                                  are committed to promoting diversity and inclusion in the airport
                                                                  industry.
                                                                     The DBE authorization by Congress is vitally needed to combat
                                                                  conscious and unconscious bias and institutional discrimination
                                                                  that, regrettably, minority and women entrepreneurs too often face.
                                                                  To be sure, steady progress has been made. However, our DBEs




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                                                                  and ACDBE members regularly attest that, without the DBE pro-
                                                                  gram, they would be locked out of contracting opportunities.
                                                                     Having served in many capacities with AMAC, as board chair,
                                                                  and committee chair, and as an airport commissioner, I too have
                                                                  had my own direct observation about the additional work to be
                                                                  done.
                                                                     In addition, anecdotal accounts, like academic papers and data
                                                                  from recent disparity studies, further document the continuing
                                                                  challenge of racial and/or gender bias barriers to full participation.
                                                                  They also point to the ongoing need for a DOT DBE program.
                                                                     AMAC works consistently with Congress, the U.S. DOT, Federal
                                                                  Aviation Administration, aviation trade organizations, and others,
                                                                  as a resource to provide education and guidance concerning these
                                                                  public policies and best practices to redress discrimination and fur-
                                                                  ther diversity and inclusion issues.
                                                                     Often we are unwilling to, really, have candid conversations and
                                                                  discussion about discrimination. But its ongoing present-day mani-
                                                                  festations are real.
                                                                     With regard to the Government’s interest in battling discrimina-
                                                                  tion, equality is a core value of our Constitution, and fairness also
                                                                  yields great societal benefits.
                                                                     Although there has been growth in a number of minority- and
                                                                  women-owned firms in the United States, they continue to experi-
                                                                  ence both direct and indirect discrimination. Examples of this is
                                                                  clear when you look at prime contractors and suppliers, unequal
                                                                  access to capital, bias in bonding decisions, how contracts are struc-
                                                                  tured, and RFP experience requirements. The Government has a
                                                                  powerful fundamental interest in addressing these forms of dis-
                                                                  crimination.
                                                                     The DBE program allows minority- and women-owned firms to
                                                                  participate in federally assisted contracts worth millions of dollars
                                                                  and, as you have heard earlier, these businesses are only receiving
                                                                  pennies. But we really do appreciate all the work that has been
                                                                  going on so far, and I would like to make a few comments on the
                                                                  disparity studies that have been presented for a fact of evidence.
                                                                     While it was clear progress has been made, and many policy bat-
                                                                  tles have been won, it is also clear there is a continuing and com-
                                                                  pelling need for the DBE program. There are far too many in-
                                                                  stances when women and minorities are denied equal access to op-
                                                                  portunities in the transportation space. As noted, we continue to
                                                                  see extreme, compelling statistical evidence of discrimination, and
                                                                  its effect in disparity studies are really clear, and we will present
                                                                  other ideas.
                                                                     For a number of years, this committee has worked in a bipar-
                                                                  tisan manner to shore up this program by monitoring current dis-
                                                                  crimination and present-day effects on the past discriminations, as
                                                                  well as legislation modifications for the current program. These ef-
                                                                  forts have been really important, and I want to let Members know
                                                                  that these policy gains have been great.
                                                                     But the COVID–19 epidemic has really created even more prob-
                                                                  lems for our diverse businesses. Although in response to the pan-
                                                                  demic Congress has provided a lot of assistance to small business,
                                                                  they are hindered by these discrimination policies. As I said ear-
                                                                  lier, these businesses have unique challenges that can’t be solved




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                                                                  by short-term programs like the Paycheck Protection Program, and
                                                                  other funding decisions.
                                                                    ACDBEs will find themselves ill-equipped to participate in pro-
                                                                  grams like the Main Street Lending Program, and the airport con-
                                                                  cessionaires, unlike passenger air carriers, air cargo carriers, and
                                                                  associated contractors, received no explicit assistance in phase 3 of
                                                                  the CARES Act. So I would like to ask you to look at issues sur-
                                                                  rounding the DBE program, that you look at what could be done
                                                                  in the short term to protect and sustain these businesses that are
                                                                  under this current economic crisis.
                                                                    I thank you for the opportunity to testify before the House Com-
                                                                  mittee on Transportation and Infrastructure, and on behalf of our
                                                                  group and the thousands of airport concessionaires, I would like to
                                                                  say thank you. And if there are any other questions, I will be
                                                                  happy to answer those at the appropriate time.
                                                                    [Mr. Ali’s prepared statement follows:]
                                                                                                            f

                                                                          Prepared Statement of Farad Ali, Chairman, Government Affairs
                                                                                  Committee, Airport Minority Advisory Council
                                                                     Chairman DeFazio, Ranking Member Graves, and members of the Committee, my
                                                                  name is Farad Ali, and I am the Chairman of the Government Affairs Committee
                                                                  for the Airport Minority Advisory Council (AMAC). I am also the immediate past
                                                                  Chairman of the Raleigh Durham International Airport Authority. Thank you for
                                                                  providing AMAC with the opportunity to participate in the Committee’s hearing
                                                                  today.
                                                                     AMAC was founded thirty-six (36) years ago to combat discrimination in the air-
                                                                  port industry. Since its founding AMAC has been at the forefront of nearly every
                                                                  national policy discussion concerning the ubiquitous nature of discrimination in the
                                                                  transportation industry and, in particular, concerning airport contracting opportuni-
                                                                  ties for small and disadvantaged businesses enterprises (DBEs). AMAC’s members
                                                                  include DBEs—and airport concessions DBEs (ACDBEs), non-DBEs, airports and
                                                                  airport officials and others who are committed to promoting diversity and inclusion
                                                                  in the airport industry. As a result, AMAC occupies a unique vantage point con-
                                                                  cerning the purpose of this hearing.
                                                                     The DBE program authorized by Congress is vitally needed to combat conscious
                                                                  and unconscious bias and institutional discrimination that regrettably minority and
                                                                  woman entrepreneurs too often experience. Too be sure, steady progress has been
                                                                  made; however, our DBE and ACDBE members regularly attest that without the
                                                                  DBE program they would be locked out of contracting opportunities. Having served
                                                                  in many capacities with AMAC (as a board chair and committee chair) and as an
                                                                  airport commissioner I too have my own direct observations about the additional
                                                                  work to be done. In addition, anecdotal accounts, academic papers, and data from
                                                                  recent disparity studies—many of them undertaken by AMAC members who are
                                                                  consultants and researchers—further document the continuing challenge of racial
                                                                  and/or gender based barriers to full participation. They also point to the ongoing
                                                                  need for the DOT DBE program.
                                                                     AMAC works consistently with Congress, the US Department of Transportation,
                                                                  the Federal Aviation Administration, aviation trade associations, and others as a re-
                                                                  source for information, education and guidance concerning public policies and best
                                                                  practices to redress discrimination and further diversity and inclusion. On a bi-par-
                                                                  tisan basis this Committee and the Congress has shown great leadership in affirm-
                                                                  ing the government’s continuing interest in remedying discrimination and its effects.
                                                                  As we are aware, Congressional efforts to monitor ongoing evidence of discrimina-
                                                                  tion undergird the statutory and regulatory framework of the DBE program—and
                                                                  give airports a targeted, narrowly tailored, evidence based ‘‘tool’’ to promote equity,
                                                                  fairness, participation. Again, Mr. Chairman, AMAC thanks you and the Committee
                                                                  for your ongoing leadership and collaborative approach with industry stakeholders.
                                                                     Often we are unwilling to have candid discussions about discrimination and its
                                                                  ongoing present day manifestations. With regard to the government’s interest in
                                                                  combatting discrimination, equity is a core value of our Constitution and fairness
                                                                  also yields other important societal benefits. Although there has been growth in the




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                                                                  number of minority businesses in the United States, they continue to experience
                                                                  both direct and indirect discrimination. Examples of indirect discrimination include:
                                                                  direct discrimination by prime contractors or suppliers, unequal access to capital,
                                                                  bias in bonding decisions, how contracts are structured, RFP experience require-
                                                                  ments in RFPs, and the like. The government has a powerful and fundamental in-
                                                                  terest in addressing these forms of discrimination and the DBE program is part of
                                                                  that effort.
                                                                     Minority-owned businesses remain underrepresented as a share of the total U.S.
                                                                  business ownership. Moreover, these businesses when compared to their non-minor-
                                                                  ity counterparts typically have fewer employees and lower revenues. This underrep-
                                                                  resentation in large measure has its basis in racial discrimination and addressing
                                                                  it is a critical reason why Congress must continue to support initiatives like the
                                                                  DBE program.
                                                                     The program allows women and minority-owned companies to participate in feder-
                                                                  ally-assisted transportation contracts worth billions of dollars a year. The program
                                                                  is an essential entry point for many DBE firms into the transportation space and
                                                                  there is a large and growing body of evidence that shows that the DBE program
                                                                  enables women and minority owned firms the opportunity to play in a space that
                                                                  would otherwise be off limits to them. Simply put, this program works and as noted
                                                                  previously, it is narrowly tailored to meet the constitutional standard set out by the
                                                                  U.S. Supreme Court. A fact that has been affirmed by many federal District and
                                                                  Courts of Appeal.
                                                                     I’d like to offer a few more comments on disparity studies and other fact based
                                                                  evidence that discrimination continues to a problem in the transportation sector.
                                                                  While it’s clear that progress has been made and many policy battles have been
                                                                  won, it is also clear that there is still a continuing and compelling need for the DBE
                                                                  program. In far too many instances women and minorities are being denied equal
                                                                  access to opportunities in the transportation space. As noted previously, we continue
                                                                  to see extremely compelling statistical evidence of discrimination and its effects
                                                                  from a variety of disparity studies that are produced by state and local govern-
                                                                  ments. These studies are backed up by countless accounts from women and minority
                                                                  owned firms that show that they continue to operate on an uneven playing field.
                                                                  AMAC continuously works with its members to monitor ongoing discrimination, and
                                                                  we will submit some examples to the Committee. AMAC believes that these ac-
                                                                  counts show that this problem is not specific to any one county, state, or group.
                                                                  Rather, it exists throughout the country and effects countless individual businesses.
                                                                     In the aggregate, these studies show us that women and minority owned firms
                                                                  continue to face discrimination and that without initiatives like the DBE program,
                                                                  these firms would receive far fewer opportunities to successfully compete for con-
                                                                  tracts in the transportation sector. AMAC commends the work that the Committee
                                                                  has done in this area and I would personally like to thank all of the Committee
                                                                  Members and their staff for working to ensure that the DBE program continues to
                                                                  create a fairer marketplace in which women and minority owned businesses are able
                                                                  to find opportunities in transportation sector. For a number of years, this Com-
                                                                  mittee has worked in a bipartisan manner to shore up and maintain this program
                                                                  by:
                                                                     • Monitoring Current Discrimination and the Present Day Effects of Past Dis-
                                                                        crimination: Holding hearings like this one permit the Committee to hear di-
                                                                        rectly from DBEs and ACDBEs and their representatives about the discrimina-
                                                                        tion they experience as they attempt to establish and grow their businesses. It
                                                                        is critically important that Congress and the public have a full understanding
                                                                        of the types of discrimination that persist across the nation so that they can
                                                                        support and improve the programs intended to address such discrimination.. We
                                                                        are grateful to this Committee for the work it has done in this area.
                                                                     • Legislative Modifications to the Current Program that Foster a Fairer Market-
                                                                        place: Similarly, this Committee has also worked to incorporate needed statu-
                                                                        tory modifications into legislation that has moved through this committee.
                                                                        Again, for example, in the 2018 FAA Reauthorization, the Committee addressed
                                                                        a long-standing discriminatory small business ‘‘size standard’’ barrier to DBEs
                                                                        involved in FAA-assisted contracting. The legislation rectified this matter by
                                                                        conforming the DBE size standard for programs authorized by the FAA bill to
                                                                        those set by the U.S. Small Business Administration. The prior definition had
                                                                        not used size tests that are generally applicable under the Small Business Act,
                                                                        but instead imposed an arbitrary rule that reduced the size standard for DBEs
                                                                        by approximately 30% as compared to the size standard set in the Small Busi-
                                                                        ness Act. We note as well that H.R. 2, which recently passed the House of Rep-
                                                                        resentatives, would eliminate the discriminatory small business standard with
                                                                        respect to all DOT modes—highways, transit, and rail.




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                                                                     These efforts have been substantive and helpful in ensuring that the DBE pro-
                                                                  gram continues to be a success. However, while I and AMAC applaud the Com-
                                                                  mittee for its efforts in assisting women and minority owned businesses, I want to
                                                                  take some time to let Members know that many of these policy gains (particularly
                                                                  in airport concessions space) will likely be lost as a result of the COVID–19 Pan-
                                                                  demic—if Congress does not provide direct and immediate assistance to conces-
                                                                  sionaires.
                                                                     The COVID crisis has absolutely decimated women and minority owned airport
                                                                  businesses. From the vantage point of the airport sector, I can say that this crisis
                                                                  and the resulting economic downturn has been absolutely devastating. Airport con-
                                                                  cessionaires including Disadvantaged Business Enterprises (ACDBEs) are the third
                                                                  major partner in an ecosystem that serves air travelers. Concessionaires take empty
                                                                  airport terminals and turn them into vibrant shopping and dining destinations that
                                                                  generate important revenues for themselves and fees that are paid to airports.
                                                                  These concessionaires are major sources of employment and taxes for surrounding
                                                                  communities and they help to grow the airports in which they are located by pro-
                                                                  viding (in aggregate and pre-COVID times) approximately $2.5 billion in non-aero-
                                                                  nautical revenue to airports. This revenue fuels new airport growth by underpinning
                                                                  airport bond financing, development, and growth.
                                                                     However, as airport concessionaires, these businesses are uniquely dependent on
                                                                  the flow of passengers in and around airports. Our revenues rise and fall based on
                                                                  Airline passenger traffic. If there is no traffic, we cannot survive. With COVID–19,
                                                                  we have seen this traffic fall sharply in some cases up to 95% of pre-pandemic to-
                                                                  tals. This dramatic fall in potential customer traffic has already caused many
                                                                  ACDBEs to close their doors permanently. Those that are still open are barely sur-
                                                                  viving and have seen their revenues drop by 95 percent or more. Unlike the rest
                                                                  of the economy, industry experts don’t expect this industry to bounce back quickly.
                                                                  Instead these experts expect passenger traffic (and subsequently business sales) to
                                                                  remain depressed for at least 18–36 months. Prior to this pandemic, ACDBE pro-
                                                                  gram had created several success stories of businesses that not only scaled within
                                                                  their home airport but were able to open new operations in airports across the coun-
                                                                  try. This program saw businesses that had begun to setup joint ventures with larger
                                                                  businesses to grow their operations, and had also seen older ACDBEs act as men-
                                                                  tors to other businesses that had just entered this space. COVID–19 could undo all
                                                                  of this progress. I don’t want to sound alarmist, but the industry and ACDBEs in
                                                                  particular are at a crossroads.
                                                                     Although in response to the pandemic Congress has enacted programs intended
                                                                  to assist small businesses, they are not well suited to the airport environment. As
                                                                  a result, concessionaires continue to struggle to secure adequate resources to survive
                                                                  the COVID crisis. ACDBEs, which are already hindered by discrimination in many
                                                                  aspects of their work, are even more vulnerable to the pandemic. As I said earlier,
                                                                  these businesses have unique challenges that can’t be solved by short term pro-
                                                                  grams like the Paycheck Protection Act and often need more funding than what is
                                                                  currently available under the Economic Injury Disaster Loan. ACDBEs also find
                                                                  themselves ill-equipped to participate in programs like the Main Street Lending
                                                                  Program and airport concessionaires unlike the passenger air carriers, air cargo car-
                                                                  riers, or associated contractors received no explicit assistance in Phase III of the
                                                                  CARES Act.
                                                                     Although DBEs and ACDBEs, in particular, are severely impacted by the pan-
                                                                  demic, this economic devastation is not limited to the aviation sector. Minority busi-
                                                                  nesses in general have been decimated by the pandemic. All across the country, mi-
                                                                  nority businesses are shutting down permanently. Lacking pre-existing relation-
                                                                  ships with banks, many of these businesses were unable to access loans from the
                                                                  first round of the PPP. Many of these companies simply folded, taking jobs and po-
                                                                  tential revenues with them. This country can’t afford to lose a generation of minor-
                                                                  ity entrepreneurs. These businesses are sources of income, skills training, and devel-
                                                                  opment for many minority communities. I ask that as you look into the issues sur-
                                                                  rounding the DBE program that you also look at what can be done in the short-
                                                                  term to protect and sustain businesses under the current economic climate. This
                                                                  Committee and the DBE program has done an amazing job of helping to build a
                                                                  transportation marketplace that is more equitable and fairer than it would have
                                                                  been without your efforts. To protect and maintain these efforts, I ask that Members
                                                                  continue to not only support the DBE program, but to also work to support the
                                                                  ACDBEs and DBEs as they seek to get back on their feet.
                                                                     Thank you for this opportunity to testify before the House Committee on Trans-
                                                                  portation and Infrastructure on behalf of AMAC. Our group and the thousands of
                                                                  Airport Concessionaires that we represent look forward to working with the Com-




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                                                                  mittee to advance policies that will continue to protect and enhance the DBE pro-
                                                                  gram.

                                                                     Mr. DEFAZIO. Thank you for your testimony.
                                                                     Ms. Norman, you may proceed.
                                                                     Oh, wait, I am sorry, I skipped someone.
                                                                     Mr. McDonald, you may proceed.
                                                                     Mr. MCDONALD. Thank you, Chairman DeFazio, and good morn-
                                                                  ing, committee members. My name is Sandy McDonald, and I am
                                                                  the director of the Office of Economic and Small Business Develop-
                                                                  ment in Broward County. I am also here on behalf of COMTO, the
                                                                  Conference of Minority Transportation Officials, this morning. And
                                                                  my office is also a member of the Airport Minority Advisory Coun-
                                                                  cil.
                                                                     It was an excellent start in 1983, when the provision was made
                                                                  to authorize highway and Federal assistance programs to allocate
                                                                  at least 10 percent of the funds to be spent with DBEs. In 1987
                                                                  the program progressed, and included women during the reauthor-
                                                                  ization.
                                                                     The DBE program, as we know it today, is one of the most sig-
                                                                  nificant tools for guaranteeing the participation of minority-owned
                                                                  and women-owned businesses in the Federal procurement of goods
                                                                  and services in the arenas of highway, aviation, and transit. But
                                                                  we also know we can do more.
                                                                     In Broward County alone, the DBE program accounts for 408
                                                                  businesses, of which 210 are women-owned. Throughout the State
                                                                  of Florida, there are over 4,000 certified DBEs documented. The
                                                                  significance of the number of DBEs in my county and State is only
                                                                  one important factor to consider. Equally as important are the
                                                                  number of jobs these DBEs provide and account for throughout the
                                                                  State and the country. But yet we know we can do more.
                                                                     Broward County believes the success of our DBEs comes from the
                                                                  additional assistance we are willing to offer in our program. All
                                                                  DBE program administrators are required to meet eight objectives
                                                                  of the DBE program under part 26. However, the following specific
                                                                  objective, ‘‘to assist the development of firms that can compete suc-
                                                                  cessfully in the marketplace outside the DBE program,’’ is one we
                                                                  put extra emphasis on and apply to grow our minority and women
                                                                  participation and, yes, grow our overall economy.
                                                                     The DBE program in Broward County develops and directly af-
                                                                  fords our minority- and women-owned businesses the chance to
                                                                  perfect their craft, realize their growth, build capacity, and nurture
                                                                  relationships that can carry them far beyond a single contract.
                                                                  Going through the process for a DBE is invaluable. Whether they
                                                                  win or lose a specific bid, it allows them to create relationships that
                                                                  lead to partnerships that have the potential to result in future con-
                                                                  tracting opportunities. And it is that potential with our firms we
                                                                  want to build on even more.
                                                                     Providing this opportunity through Department of Transpor-
                                                                  tation contracting for minority- and women-owned businesses goes
                                                                  far beyond the one single contract. It is imperative that a DBE pro-
                                                                  gram achieves the outlined objectives. It is these objectives that
                                                                  provide opportunities for DBEs, and are the standard that
                                                                  DBELOs—Disadvantaged Business Enterprise Liaison Officers—
                                                                  such as myself, govern our programs by. We recognize that there




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                                                                  is always room for improvement. We accept the challenges that
                                                                  arise as opportunities to expand on the original intent, and to con-
                                                                  tinue the purpose of the program.
                                                                    I have seen the professional growth of DBEs over time. I have
                                                                  witnessed the evolution of business owners with an idea who start-
                                                                  ed operations in small residential markets, and then expanded to
                                                                  commercial markets, and prepared themselves for Government pro-
                                                                  curement. I have certified businesses who met all the eligibility cri-
                                                                  teria for DBE participation, but were not familiar with Government
                                                                  bidding or establishing professional relationships. I have worked
                                                                  with established DBE businesses who have used their talents and
                                                                  experiences to grow their business beyond my county, and beyond
                                                                  my State, and to provide their service in multiple States.
                                                                    I have also, unfortunately, seen those businesses who were not
                                                                  given the opportunity this program should allow. We can actually
                                                                  do more.
                                                                    The DBE program affords minority- and women-owned busi-
                                                                  nesses the chance to start, develop, and master their abilities, and
                                                                  grow beyond their initial footprint and the program. For this rea-
                                                                  son and many more, the DBE program needs to continue for an ad-
                                                                  ditional 37 years and beyond.
                                                                    While my office in Broward County continues to find more ways
                                                                  to increase our DBE participation while focusing on successful con-
                                                                  tracting awards to DBEs, we also pay attention to the areas where
                                                                  there are opportunities to grow, and embrace the challenges that
                                                                  could make this program even better. The success of our program
                                                                  and the impact it has on the local and State economy is an ideal
                                                                  example of the importance of the DBE program to drive equality
                                                                  in the field of transportation.
                                                                    And yes, I will say without question, COVID has impacted our
                                                                  community in the worst way, and we believe the DBE program will
                                                                  be one of those starts that helps us to bring our community back
                                                                  and support the minority- and women-owned businesses.
                                                                    Thank you for this opportunity.
                                                                    [Mr. McDonald’s prepared statement follows:]
                                                                                                            f

                                                                       Prepared Statement of Sandy-Michael E. McDonald, Director, Office of
                                                                       Economic and Small Business Development, Broward County, Florida
                                                                     Greetings Chairman DeFazio and Committee Members:
                                                                     My name is Sandy-Michael E. McDonald and I am the Director of the Office of
                                                                  Economic and Small Business Development for Broward County, Florida. I also
                                                                  serve as the Disadvantaged Business Enterprise Liaison Officer (DBELO) and Air-
                                                                  port Concession Disadvantaged Business Enterprise Liaison Officer (ACDBELO) for
                                                                  the administering of the DBE and ACDBE programs under 49 CFR Parts 26 & 23.
                                                                  As the DBELO/ACDBELO, it is my responsibility, and that of my office, to ensure
                                                                  that the objectives of the Disadvantaged Business Enterprise (DBE) and the Airport
                                                                  Concessions Disadvantaged Business Enterprise (ACDBE) programs are adhered to.
                                                                  This includes certifying eligible applicants and confirming that program activities
                                                                  and projects are monitored and reported accurately. As this Committee on Transpor-
                                                                  tation and Infrastructure convenes to hear testimony on the topic of ‘‘Driving Equal-
                                                                  ity: The U.S. Department of Transportation’s Disadvantaged Business Enterprise
                                                                  Program’’, I would like to share some of my thoughts, professional experiences, and
                                                                  observations of my daily role in driving equality and using the DBE program to do
                                                                  so.




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                                                                                                            OPENING STATEMENT
                                                                     It was an excellent start in 1983 when the provision was made to authorize high-
                                                                  way and federal financial assistance programs to allocate at least 10% of the funds
                                                                  to be spent with DBEs to ensure that minorities would have an opportunity to par-
                                                                  ticipate and compete. In 1987, as the program progressed, it included women during
                                                                  the reauthorization. The DBE program as we know it today, is one of the most sig-
                                                                  nificant tools for guaranteeing the participation of minority-owned and women-
                                                                  owned businesses in the federal procurement of goods and services in the arenas
                                                                  of Highway, Transit and Aviation. However, it also serves as a foundation for other
                                                                  federal procurement programs and contracting opportunities.
                                                                     In Broward County alone, the DBE program accounts for 408 businesses; of which
                                                                  210 are women-owned. Throughout the State of Florida there are over 4,043 cer-
                                                                  tified DBEs documented. The significance of the number of DBEs in my county and
                                                                  state is only one important factor to consider. Equally as important, are the number
                                                                  of jobs these DBEs provide and account for throughout the state and country. The
                                                                  implications and impact on labor and economics of these combined factors are not
                                                                  singular, but exponential. As an office, we are excited about growing the number
                                                                  of DBEs in the county, and throughout the state. We are even more excited about
                                                                  developing DBEs to participate successfully in the process, and then, preparing
                                                                  them to win contracts. That is the true value of the program.
                                                                     Broward County believes the success of our DBEs comes from the additional as-
                                                                  sistance we are willing to offer in our program. All DBE program administrators
                                                                  are required to meet the eight objectives of the DBE Program under 49 CFR Part
                                                                  26.1. However, the following specific objective: ‘‘To assist the development of firms
                                                                  that can compete successfully in the marketplace outside the DBE program’’, is the
                                                                  one we apply to grow our minority and women participation, and to grow our overall
                                                                  economy. We support this by preparing minority and women owned businesses to
                                                                  contract and provide services in all areas of government, private industry, national
                                                                  and international markets, as well as to produce more entrepreneurs and startup
                                                                  businesses.

                                                                                               NEED OF THE PROGRAM—THEN AND NOW
                                                                    Broward County clearly understands the importance and the need for the DBE
                                                                  program since its inception to the present. Through the projects and procurement
                                                                  of our Aviation and Transit Departments, our DBEs are given the opportunity to
                                                                  not only participate as a subcontractor, but to also serve as Prime Contractors
                                                                  (Primes). Due to our unbundling and small business development, our DBEs can
                                                                  serve as Primes on contracts and offer additional opportunities to other DBEs as
                                                                  subcontractors. The DBE program in Broward County develops and directly affords
                                                                  our minority and women owned businesses the chance to perfect their craft, realize
                                                                  their growth, build capacity, and nurture relationships that carry them far beyond
                                                                  a single contract. Going through the process for our DBEs is invaluable. Whether
                                                                  they win or lose a specific bid, it still allows them to create relationships that lead
                                                                  to partnerships that have the potential to result in future contracting opportunities
                                                                  outside of the government. Providing this opportunity through DOT contracting for
                                                                  minority and women owned businesses goes far beyond the contract.
                                                                    It is imperative that a DBE program achieves the following objectives:
                                                                    a) To ensure nondiscrimination in the award and administration of DOT-assisted
                                                                        contracts in the Department’s highway, transit, and airport financial assist-
                                                                        ance programs;
                                                                    b) To create a level playing field on which DBEs can compete fairly for DOT-as-
                                                                        sisted contracts;
                                                                    c) To ensure that the Department’s DBE program is narrowly tailored in accord-
                                                                        ance with applicable law;
                                                                    d) To ensure that only firms that fully meet this part’s eligibility standards are
                                                                        permitted to participate as DBEs;
                                                                    e) To help remove barriers to the participation of DBEs in DOT-assisted con-
                                                                        tracts;
                                                                    f) To promote the use of DBEs in all types of Federally assisted contracts and
                                                                       procurement activities conducted by recipients.
                                                                    g) To assist the development of firms that can compete successfully in the mar-
                                                                        ketplace outside the DBE program; and
                                                                    h) To provide appropriate flexibility to recipients of Federal financial assistance
                                                                        in establishing and providing opportunities for DBEs.
                                                                    It is these objectives that provide opportunities for DBEs, and are the standard
                                                                  that DBELOs, such as myself, govern ourselves and the program. These along with




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                                                                                                                  35
                                                                  the principles of professionalism and personal compassion, commitment, interest in
                                                                  growing and sustaining minority and women owned businesses, and striving for a
                                                                  greater economy, is why my office and Broward County supports and takes seriously
                                                                  our role and responsibility.
                                                                     We recognize that there is always room for improvement. We accept the chal-
                                                                  lenges that arise as opportunities to expand on the original intent, and to continue
                                                                  the purpose of the program. Broward County uses the DBE program and county
                                                                  contracting funded by DOT to stabilize and grow our economy and workforce. Now,
                                                                  more than ever, due to the COVID–19 public health crisis, industries such as avia-
                                                                  tion and transit have been adversely impacted, and to a degree, completely shut
                                                                  down in some locations for 5 months or more. Broward is identifying opportunities
                                                                  through Master Plans and through previously dedicated funding sources, to continue
                                                                  projects that will put some of our DBEs back to work and assist in the rejuvenation
                                                                  of our economy. We also realize that for the DBEs we have certified over the years,
                                                                  a significant part of developing them is also making sure they have the necessary
                                                                  access to capital. DBEs must be able to not only win a contract, but also to execute
                                                                  the contract over time. They must be able to meet all their financial obligations as
                                                                  they await payment. Clearly, this is a priority for all small businesses, especially
                                                                  minority and women owned businesses. Broward County is committed to leveraging
                                                                  resources to assist our businesses in being prepared financially. Another key ele-
                                                                  ment of developing our DBEs is making sure they have examples of best practices
                                                                  and access to information sharing. We continue to grow in that area; this includes
                                                                  building Mentor-Protégé relationships, as well as business development workshops
                                                                  on topics and areas of need and demand.

                                                                                                           CLOSING REMARKS
                                                                     I have seen the professional growth of DBEs over time. I have witnessed the evo-
                                                                  lution of business owners with an idea who started operations in small residential
                                                                  markets and then expanded to commercial markets and prepared themselves for
                                                                  government procurement. I have certified businesses who met all the eligibility cri-
                                                                  teria for DBE participation but were not familiar with government bidding or estab-
                                                                  lishing professional relationships. I have worked with established DBE businesses
                                                                  who have used their talents and experiences to grow their business beyond my coun-
                                                                  ty and beyond my state to provide their services in multiple states.
                                                                     The DBE program affords minority and women owned businesses the chance to
                                                                  start, develop, master their abilities, and grow beyond their initial footprint and the
                                                                  program. For these reasons, and many more, the DBE program needs to continue
                                                                  for an additional 37 years and beyond. While my office and Broward County con-
                                                                  tinues to find more ways to increase our DBE participation numbers, while focusing
                                                                  on the successful contracting awards to DBEs, we will also pay attention to the
                                                                  areas where there are opportunities to grow and embrace the challenges that could
                                                                  make this great program even better. We will continue to work to make sure that
                                                                  more than our county office and staff are aware of the success of the DBE program
                                                                  and its participants. The participants themselves and their businesses are the best
                                                                  way to tell the story, and to have a voice for recruitment of new DBEs. Existing
                                                                  DBEs are the best trainers to share what the best business practices are. Existing
                                                                  DBEs are the demonstrators of how to contribute to the economic vitality, success,
                                                                  and a growing economy. Broward County will continue to do its part to meet and
                                                                  exceed all the objectives of the 49 CFR to maintain a successful DBE program. The
                                                                  success of our program and the impact it has on the local and state economy is an
                                                                  ideal example of the importance of the DBE program to drive equality in the field
                                                                  of transportation. Broward County exemplifies what DBEs, in partnership with gov-
                                                                  ernment, working within a federal program that is committed to utilizing a target
                                                                  group, can produce.
                                                                     Thank you for this opportunity to share my knowledge and experience with the
                                                                  DBE program. The impact the program has historically had on the economy, and
                                                                  the effect it continues to have should not be minimized. I am in full support of the
                                                                  continuation of the program in the interest of driving equality.

                                                                    Mr. DEFAZIO. Thank you, Mr. McDonald. While you are testi-
                                                                  fying, if you wonder why I am looking over there, somehow some
                                                                  people show up on that screen, and some people only show up over
                                                                  there. So I don’t know—I would hope, if our tech person is listen-
                                                                  ing, when someone is speaking, if we could pop them up on the
                                                                  main screen, so we can just look forward.




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                                                                     With that, Ms. Norman, you may proceed.
                                                                     Ms. NORMAN. Thank you very much, Mr. Chairman and mem-
                                                                  bers of the Transportation and Infrastructure Committee. Thank
                                                                  you all so much for allowing me to be a part of this process, and
                                                                  I am very honored and pleased to appear before you today. My
                                                                  name is Sandra D. Norman. I am division administrator for civil
                                                                  rights with the Virginia Department of Transportation.
                                                                     As director, I know firsthand of the DBE program’s importance
                                                                  that is within your jurisdiction. I am very supportive of the DBE
                                                                  program that assists minority- and women-owned businesses who
                                                                  are ready, willing, and able to compete and perform contract work
                                                                  as either a prime contractor or subcontractor. I believe it is the
                                                                  right thing to do. It continues to drive equality and inclusiveness.
                                                                     The DBE program for the United States meets constitutional
                                                                  tests. Every court has held that the DBE program regulations and
                                                                  49 CFR 26 are constitutional.
                                                                     Why is the DBE program important? Here are some of my
                                                                  thoughts for you to consider.
                                                                     The DBE program has its roots in the Civil Rights Act of 1964.
                                                                  It has been regulated through a series of reauthorization legislative
                                                                  initiatives. The DBE program applies to airport and surface trans-
                                                                  portation, highway, transit, and aviation. The DBE program has
                                                                  been enacted by Congress to address historical discrimination
                                                                  against minority-owned firms in the transportation industry, and
                                                                  to ensure that minority- and women-owned businesses have a fair
                                                                  chance to participate in contracting opportunities made possible by
                                                                  Federal financial assistance.
                                                                     The DBE program, with its rigid certification requirements, pre-
                                                                  sents an excellent opportunity for a win-win for all parties.
                                                                     It is a success for VDOT, and a success for the community. We
                                                                  want the residents of those communities to benefit from the public
                                                                  investment in that community. The majority of employment growth
                                                                  in the United States comes from small businesses. When small
                                                                  businesses are allowed to do contract work, it is an opportunity for
                                                                  people who might have been excluded from the relevant workforce
                                                                  to showcase their talents and skills, get training, and work within
                                                                  the transportation industry to have more employment opportuni-
                                                                  ties in the future.
                                                                     Advancing diversity and making money are not conflicting goals.
                                                                  It is good for business and good for society.
                                                                     DOT’s DBE program is as relevant today as ever to level the
                                                                  playing field in transportation for individuals, businesses, and com-
                                                                  munities of race, color, and gender. Our country suffers when tal-
                                                                  ented people who have new ideas and who want to work hard are
                                                                  denied the opportunity to compete because of their ethnic back-
                                                                  ground, race, or gender. And that is why there is a continuing need
                                                                  for the Disadvantaged Business Program, a need to ensure that
                                                                  small businesses can compete fairly for Federal-funded, transpor-
                                                                  tation-related projects.
                                                                     The DBE program, independent of the inherent challenges and
                                                                  the nature that comes with those challenges, has provided opportu-
                                                                  nities for minorities and women-owned small businesses and other
                                                                  contractors to participate in an arena that has historically not seen
                                                                  such participation. It has allowed people to create jobs, and give




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                                                                  their employees a quality of life which they would not have been
                                                                  able to do before the DBE program.
                                                                     So, independent of all the challenges, the right part of the pro-
                                                                  gram is access, access to many construction projects that use gov-
                                                                  ernmental money that will have a requirement with a designated
                                                                  percentage of the total contract values awarded, making sure they
                                                                  are awarded to the DBEs. This allows access to DBE businesses
                                                                  that may not have been able to compete on price with larger oper-
                                                                  ations to win contracts on projects.
                                                                     In addition to the financial benefit, contacts are made with re-
                                                                  spective industries that may lead to additional work. It is about
                                                                  people.
                                                                     It is about jobs. And too often we forget that our industry’s gold-
                                                                  en nuggets are the people who participate in the DBE program, our
                                                                  small businesses and the thousands upon thousands of people they
                                                                  employ.
                                                                     Oftentimes we forget that the faces behind the businesses also
                                                                  want to leave a legacy for their children, grandchildren, and for
                                                                  generations yet unborn.
                                                                     In closing, the success of DOT’s DBE program depends on the
                                                                  rich diversity, skills, and talents of our DBEs. VDOT, as an agency,
                                                                  will continue to serve as a model DBE program to ensure that
                                                                  minority- and women-owned businesses have a fair opportunity to
                                                                  participate in contracting opportunities at VDOT. Therefore, we are
                                                                  committed to championing and strengthening our DBE program.
                                                                     It is the real-life stories of discrimination for minority and
                                                                  women business owners that are vital to assisting courts, policy-
                                                                  makers such as yourselves, and the public to understand the need
                                                                  to preserve and improve the Government DBE program that helps
                                                                  to drive equality and inclusiveness within the U.S. DOT DBE pro-
                                                                  gram.
                                                                     Again, I am honored, and thank you so much for your time and
                                                                  consideration.
                                                                     [Ms. Norman’s prepared statement follows:]
                                                                                                             f
                                                                       Prepared Statement of Sandra D. Norman, Division Administrator, Civil
                                                                                   Rights, Virginia Department of Transportation
                                                                     Thank you very much, Mr. Chairman, and members of the Transportation and In-
                                                                  frastructure Committee. Thank you all so much for allowing me to be a part of this
                                                                  process and I am very honored and pleased to appear before you today.
                                                                     My name is Sandra D. Norman, Division Administrator for Civil Rights for the
                                                                  Virginia Department of Transportation (VDOT). As Director, I know firsthand of the
                                                                  DBE Program’s meaning that is within your jurisdiction. I am very supportive of
                                                                  the DBE program that assists minority and women-owned businesses who are
                                                                  ready, willing, and able to compete and conduct contract work as either a Prime
                                                                  Contractor or Subcontractor. I believe it is the right thing to do.
                                                                     The Disadvantaged Business Enterprise (DBE) program for the U.S. meets con-
                                                                  stitutional tests. Every court has held that the DBE program regulations at 49 CFR
                                                                  Part 26 are constitutional.
                                                                     Why is the DBE Program Important, great question Mr. Chairman? Here are my
                                                                  thoughts for Transportation and Infrastructure (T&I):
                                                                     The Disadvantaged Business Enterprise Program (DBE) has its roots in the Civil
                                                                  Rights Act of 1964. It has been regulated through a series of reauthorization legisla-
                                                                  tive initiatives. The DBE program applies to airports and surface transportation
                                                                  (Highway and Transit). The DBE Program has been enacted by Congress to address
                                                                  historical discrimination against minority-owned firms in the transportation indus-
                                                                  try and to ensure that minority and women-owned businesses have a fair oppor-




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                                                                  tunity to participate in contracting opportunities made possible by Federal financial
                                                                  assistance
                                                                     The DBE program, with its rigid certification requirements, presents an excellent
                                                                  opportunity for a win-win for all parties. It is a success for VDOT and a success
                                                                  for the community. We want the residents of those communities to benefit from the
                                                                  public investment in that community. The majority of employment growth in the
                                                                  United States comes from small businesses. When small businesses are allowed to
                                                                  do contract work, it is also an opportunity for people who might have been excluded
                                                                  from the relevant workforce to showcase their talents and skills, get trained and
                                                                  work within the transportation industry to have more employment opportunities in
                                                                  the future. Advancing diversity and making money are not conflicting goals; it is
                                                                  good for business and good for society.
                                                                     Our DBE Program is as relevant today as ever: to level the playing field in trans-
                                                                  portation for individuals, businesses, and communities of race, color, and gender.
                                                                  Our Country suffers when talented people, who have new ideas, and who want to
                                                                  work hard, are denied the opportunity to compete because of their ethnic back-
                                                                  ground, race, or gender. And that is why there is a continued need for the Disadvan-
                                                                  taged Business Program, a need to ensure that small disadvantaged business enter-
                                                                  prises can compete fairly for federal funded transportation related projects.
                                                                     The DBE program, independent of the inherent challenges and the nature that
                                                                  comes with those challenges, has provided opportunities for minorities and women-
                                                                  owned small businesses and other contractors to participate in an arena that had
                                                                  historically not seen such participation. It has allowed people to create jobs and give
                                                                  their employees a quality of life, which they would not have been able to do before
                                                                  the DBE program. So independent of all the challenges we have, the right part of
                                                                  the program is ACCESS. Access to many construction projects that use govern-
                                                                  mental money that will have a requirement with a designated percentage of the
                                                                  total contract values awarded are awarded to DBEs. This allows access to DBE busi-
                                                                  nesses that may not be able to compete on price with larger operations to win con-
                                                                  tracts on projects that such businesses may not traditionally be able to win on price
                                                                  alone. In addition to the financial benefit, contacts are made with respective indus-
                                                                  tries that may lead to additional work. It is about people, it is about jobs, and too
                                                                  often, we forget that our industry’s golden nuggets are the people who participate
                                                                  in the DBE program and the thousands upon thousands of people they employ. Of-
                                                                  tentimes we forget that the faces behind the businesses also want to leave a legacy
                                                                  for their children, grandchildren, and for generations yet unborn.
                                                                     The success of VDOT’s DBE Program depends on the rich diversity, skills and tal-
                                                                  ents of our DBEs. VDOT will continue to serve as a model DBE Program to ensure
                                                                  that minority and women-owned businesses have a fair opportunity to participate
                                                                  in contracting opportunities at VDOT. Therefore, we are committed to championing
                                                                  and strengthening our DBE Program. It is the real life stories of discrimination
                                                                  from minority and women business owners that are vital to assisting courts, policy-
                                                                  makers such as yourselves, and the public to understand the need to preserve and
                                                                  improve the government disadvantaged business programs that help to DRIVE
                                                                  EQUALITY.
                                                                     Again, I am honored, and thank you very much for your time and consideration.

                                                                    Mr. DEFAZIO. Thank you, Ms. Norman.
                                                                    Dr. Wainwright, you may proceed for 5 minutes.
                                                                    Mr. WAINWRIGHT. Thank you, Chairman DeFazio, Ranking Mem-
                                                                  ber Graves, members of the committee. Good morning. I appreciate
                                                                  the invitation to appear here today. My name is Jon Wainwright.
                                                                  I hold a Ph.D. in economics from the University of Texas at Austin.
                                                                  Until my recent retirement after 24 years, I served as a managing
                                                                  director at NERA Economic Consulting. My primary career focus
                                                                  has been analyzing the effects of discrimination on minorities and
                                                                  women.
                                                                    My written testimony contains 90 pages of analysis conducted
                                                                  and compiled for this hearing. I will attempt to summarize. I have
                                                                  performed extensive original research using 95 existing disparity
                                                                  studies, as well as data covering millions of firms from the Census
                                                                  Bureau Survey of Business Owners, the Annual Business Survey,
                                                                  and the American Community Survey. My testimony is a continu-




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                                                                  ation of similar research I have performed over the course of my
                                                                  career as an economist.
                                                                     I conclude that there is strong evidence, both past and present,
                                                                  of large, adverse, and statistically significant disparities facing mi-
                                                                  nority-owned and women-owned business enterprises in the United
                                                                  States. Moreover, these disparities cannot be explained solely or
                                                                  even primarily by differences in factors that are untainted by dis-
                                                                  crimination. In other words, these disparities are primarily due to
                                                                  discrimination and its destructive effects.
                                                                     I reached this conclusion from three main sources of empirical
                                                                  evidence.
                                                                     First, disparity studies overwhelmingly demonstrate adverse
                                                                  findings for minority- and women-owned businesses. The vast ma-
                                                                  jority of the 95 disparity studies I reviewed in my testimony identi-
                                                                  fied large, adverse disparities affecting minority- and women-
                                                                  owned businesses in both construction and professional services
                                                                  like architecture and engineering. In construction, 72 percent of
                                                                  disparities were adverse, and 81 percent of those were large and
                                                                  adverse. In construction-related professional services, 77 percent
                                                                  were adverse and 97 percent of those were large and adverse. I am
                                                                  confident that, if a similar analysis were conducted with additional
                                                                  studies such as the 40 that have been introduced into the record
                                                                  here today, it would reveal similar results.
                                                                     Second, census data shows large, adverse, and statistically sig-
                                                                  nificant disparities. The most recent complete census showed that,
                                                                  for every dollar of sales and receipts earned by nonminority male-
                                                                  owned firms, African Americans earned just $.34, Hispanics just
                                                                  $.47, and Asians just $.47. American Indian and Alaska Native-
                                                                  owned firms earned just $.43. Native Hawaiian and other Pacific
                                                                  Islander owned firms earned just $.49, and women earned just
                                                                  $.41.
                                                                     Third, statistical regression analysis shows that historical and
                                                                  current disparities are largely due to discrimination. The most re-
                                                                  cent American Community Survey shows that the rate of business
                                                                  formation for African Americans would be 120 percent higher in
                                                                  the absence of discrimination. For Hispanics, the figure is 41 per-
                                                                  cent; for Asians, 30 percent higher; for American Indians and Alas-
                                                                  ka Natives, 43 percent higher; for Native Hawaiians and other Pa-
                                                                  cific Islanders, 58 percent higher; for women, 44 percent higher, in
                                                                  the absence of discrimination.
                                                                     In closing, there is still some good news. As my testimony shows,
                                                                  and as you have heard today from the other witnesses, although se-
                                                                  vere disparities persist, we are making progress, thanks primarily
                                                                  to public efforts like the DBE and ACDBE programs. Still, now is
                                                                  not the time to reduce our efforts to eliminate business discrimina-
                                                                  tion and its effects. Indeed, the evidence is overwhelming that, if
                                                                  we eliminate or reduce these programs, much greater disparities
                                                                  will very quickly occur.
                                                                     The best metaphor I can offer is to consider someone like myself,
                                                                  who takes blood pressure medication: if you take my blood pressure
                                                                  while I am on my meds, it will read close to normal. Obviously,
                                                                  that does not mean that any responsible doctor will say it is time
                                                                  to stop taking my medicine. This is precisely why I and other re-
                                                                  searchers in this area try to examine both public-sector contracting




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                                                                  markets, where affirmative measures like the DBE program are
                                                                  found, as well as private-sector contracting markets, where such
                                                                  programs are rare and, consequently, discrimination remains al-
                                                                  most totally undermediated.
                                                                     The bottom line is this: despite admirable progress, discrimina-
                                                                  tion and its destructive effects are deeply rooted in the American
                                                                  economy. Such discrimination makes it immeasurably harder for
                                                                  women and minorities to form and grow their own firms. This re-
                                                                  ality has innumerable harmful consequences for our economy and
                                                                  for our Nation. For all these reasons, I strongly urge you to reau-
                                                                  thorize the DBE program. Thank you very much.
                                                                     [Mr. Wainwright’s 55-page prepared statement follows. The tran-
                                                                  script resumes on page 95.]
                                                                                                             f
                                                                       Prepared Statement of Jon S. Wainwright, Ph.D., Affiliated Consultant,
                                                                                           NERA Economic Consulting
                                                                     Chairman DeFazio, Ranking Member Graves, and Members of the Committee:
                                                                     Thank you for the invitation to appear here today. My name is Jon Wainwright.
                                                                  I hold a Ph.D. in economics from the University of Texas at Austin. Until my recent
                                                                  retirement after 24 years, I served as a Managing Director at NERA Economic Con-
                                                                  sulting in Austin, Texas and Chicago, Illinois. NERA is a national and international
                                                                  economic consulting firm dedicated to applying economic, finance, and quantitative
                                                                  principles to complex business and legal challenges. One of my primary areas of in-
                                                                  terest as a professional economist has been documenting and analyzing the effects
                                                                  of discrimination on minorities, women, and other disadvantaged groups.
                                                                     I would like to ask the Committee’s permission to include my entire testimony in
                                                                  the record as if read in full and to supplement my testimony with additional mate-
                                                                  rial if needed.
                                                                                                            A. INTRODUCTION
                                                                     I have been asked to provide a statistical overview of the historical and current
                                                                  state of Minority-Owned and Women-Owned Business Enterprise (M/WBE) in the
                                                                  United States, for the economy as a whole and particularly in those industry sectors
                                                                  relevant to Federal surface and aviation transportation funding.
                                                                     My findings are drawn from evidence in numerous studies of M/WBE participa-
                                                                  tion in public sector contracting activity that have been performed in the wake of
                                                                  the U.S. Supreme Court’s ruling in City of Richmond v. J. A. Croson Company,1
                                                                  many of which I conducted myself. These disparity studies examine statistical evi-
                                                                  dence of M/WBE participation in public sector and private sector business activity
                                                                  compared to M/WBE representation in the relevant business populations, and offer
                                                                  explanations for the disparities observed between these factors. They also include
                                                                  qualitative, or anecdotal, accounts from both M/WBEs and non-M/WBEs regarding
                                                                  these disparities.
                                                                     Additionally, I have drawn findings from the few primary sources of statistical
                                                                  evidence that exist regarding M/WBEs, namely the Census Bureau’s historical Sur-
                                                                  vey of Business Owners, its new Annual Business Survey, and its ongoing American
                                                                  Community Survey. The Survey of Business Owners and its recent successor, the An-
                                                                  nual Business Survey, provide information regarding the total number of M/WBEs
                                                                  in the country, their gross sales and receipts, and their employment and payroll,
                                                                  both in absolute terms as well as relative to their nonminority, male-owned counter-
                                                                  parts. The American Community Survey is an annual version to the old decennial
                                                                  census long form and provides evidence regarding patterns of business formation by
                                                                  minority and female entrepreneurs and associated business earnings relative to
                                                                  their nonminority, male-owned counterparts.
                                                                     In preparing this testimony, I conducted extensive original research using all of
                                                                  the above-mentioned sources of evidence. This research is a continuation of similar
                                                                  research I have performed over the course of my career as an economist. Based on
                                                                  the findings presented below, I conclude that there is strong evidence, both past and
                                                                  present, of large, adverse, and statistically significant disparities facing minority-

                                                                       1 488 U.S. 469 (1989).




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                                                                  owned and women-owned business enterprises in the United States. Moreover, these
                                                                  disparities cannot be explained solely, or even primarily, by differences between the
                                                                  relevant populations in factors untainted by the effects of discrimination. These dis-
                                                                  parities are primarily due to discrimination and its effects, in the economy as a
                                                                  whole, as well as in the markets such as construction, architecture, and engineering
                                                                  that most relevant to Federal surface and aviation transportation funding.
                                                                  1. Qualifications
                                                                     I hold a Ph.D. in economics from the University of Texas at Austin. My graduate
                                                                  curriculum included advanced courses in statistics, econometrics and labor econom-
                                                                  ics, among others. Prior to joining NERA in 1995, I served as a Research Associate
                                                                  Professor at the Lyndon B. Johnson School of Public Affairs at the University of
                                                                  Texas at Austin and also headed my own economic consulting firm. While at NERA,
                                                                  I conducted economic and statistical studies of discrimination for attorneys, corpora-
                                                                  tions, governments and non-profit organizations. I also conducted research and ad-
                                                                  vised clients on adverse impact and economic damage issues arising from con-
                                                                  tracting activities, hiring, termination, performance assessment, compensation, and
                                                                  promotion. I have extensive experience producing, processing, and analyzing large
                                                                  and complex statistical data bases, including public sector contracting and pur-
                                                                  chasing data, as well as with myriad socioeconomic and demographic datasets pro-
                                                                  duced by the Census Bureau and other official statistical agencies.
                                                                     Over the course of my career, I have conducted economic and statistical research
                                                                  and assisted in litigation concerning the minority and female participation in public
                                                                  contracting activities. From 2004 through 2018, I directed NERA’s national discrimi-
                                                                  nation consulting practice. In that capacity, I served as the project director and
                                                                  principal investigator for more than 40 studies of business discrimination, and prior
                                                                  to that time as principal or co-principal investigator on approximately a dozen addi-
                                                                  tional business discrimination studies. I have authored two peer-reviewed mono-
                                                                  graphs and several articles and white papers on this and related subjects, including
                                                                  Guidelines for Conducting a Disparity and Availability Study for the Federal DBE
                                                                  Program, published in 2010 by the Transportation Research Board of the National
                                                                  Academy of Sciences.
                                                                     Between 2010 and 2013 I served as the principal economic and statistical expert
                                                                  on behalf of the U.S. Department of Justice, testifying in four cases challenging Fed-
                                                                  eral policies to promote participation by minority-owned and/or women-owned busi-
                                                                  nesses in Federal contracting activities. These were:
                                                                     • Kevcon, Inc. v. The United States (United States Court of Federal Claims), con-
                                                                       cerning the Small Business Administration’s 8(a) minority business set-aside
                                                                       program.2
                                                                     • Geyer Signal, Inc. and Kevin Kissell v. Minnesota Department of Transportation,
                                                                       et al. (United States District Court for the District of Minnesota), concerning
                                                                       the USDOT Disadvantaged Business Enterprise Program.3
                                                                     • Midwest Fence Corporation v. United States Department of Transportation, et al.
                                                                       (United States District Court for the Northern District of Illinois, Eastern Divi-
                                                                       sion), concerning the USDOT Disadvantaged Business Enterprise Program.4
                                                                     • Rothe Development, Inc. v. Department of Defense and Small Business Adminis-
                                                                       tration (United States District Court for the District of Columbia), concerning
                                                                       the Small Business Administration 8(a) minority business set-aside program.5
                                                                     I have been repeatedly qualified as an expert economic and statistical witness in
                                                                  both Federal and state courts and have testified in these and related matters on
                                                                  20 occasions. I have also testified before the U.S. Congress on these matters on five
                                                                  previous occasions.
                                                                     My current curriculum vitae is attached to this testimony. The source material
                                                                  relied on in reaching my findings and conclusions are noted below in the body of
                                                                  my testimony.
                                                                  2. Discrimination and its Effects, Historically and Currently, Consistently Disadvan-
                                                                      tages Minority- and Women-Owned Business Enterprises
                                                                    As other researchers have noted, and as demonstrated in many of the studies, re-
                                                                  ports, and other testimony submitted to Congress, minorities and women have been
                                                                  historically and consistently disadvantaged by the effects of discrimination in busi-

                                                                       2 Wainwright, Jon S. (2010).
                                                                       3 Wainwright, Jon S. (2012).
                                                                       4 Wainwright, Jon S. (2013b), (2013c).
                                                                       5 Wainwright, Jon S. (2013a).




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                                                                                                                  42
                                                                  ness enterprise.6 Despite progress in some areas, these disadvantages are still
                                                                  present in business markets.7 As my testimony demonstrates, although severe dis-
                                                                  parities persist between non-minority male owned firms and minority- and women-
                                                                  owned firms, we are making progress thanks to programs like the Disadvantaged
                                                                  Business Enterprise Program. Still, now is no time to reduce our efforts to eliminate
                                                                  business discrimination and its effects. Indeed, much of the progress that has been
                                                                  achieved is due to the effect that programs like the DBE program have had. The
                                                                  evidence is overwhelming that, were we to eliminate or reduce these programs,
                                                                  much greater disparities would very quickly occur. The best metaphor I can think
                                                                  of is the person who takes blood pressure medicine. If we take that person’s blood
                                                                  pressure while they are taking their medicine, their blood pressure will appear nor-
                                                                  mal but that does not mean that any responsible doctor would argue that the person
                                                                  should stop taking their blood pressure medicine. This is precisely why I and other
                                                                  researchers in this area try to examine both the public sector contracting markets
                                                                  where affirmative measures like the DBE program are found as well as the private
                                                                  sector contracting markets where such programs are much more rare. This is also
                                                                  why, although my testimony includes voluminous data from public sector sources
                                                                  like disparity studies, I also include a great deal of information from Census sources
                                                                  which examine markets that are largely unremediated by programs like the DBE
                                                                  program.
                                                                     African Americans are 13.3 percent of the general population, 12.6 percent of the
                                                                  civilian labor force, and 12.2 percent of total employment. However, at last count,
                                                                  African Americans owned only 9.5 percent of the nation’s businesses, and earned a
                                                                  mere 1.26 percent of all business sales and receipts.8
                                                                     Hispanics are 18.2 percent of the general population, 17.1 percent of the civilian
                                                                  labor force, and 17.0 percent of total employment. However, at last count Hispanics
                                                                  owned only 12.2 percent of the nation’s businesses, earned less than 4.0 percent of
                                                                  all business sales and receipts.
                                                                     American Indians and Alaska Natives are 1.3 percent of the general population,
                                                                  but they are only 1.0 percent of the business population and earned just 0.32 per-
                                                                  cent of business sales and receipts.
                                                                     Asians and Pacific Islanders represent 6.1 percent of the general population, 6.2
                                                                  percent of the civilian labor force, and 6.2 percent of total employment. While
                                                                  Asians own 7.1 percent of the nation’s businesses, they earned only 5.9 percent of
                                                                  business sales and receipts.
                                                                     Women represent 50.9 percent of the general population, 46.9 percent of the civil-
                                                                  ian labor force, and 46.9 percent of total employment. However, they are only 36.4
                                                                  percent of the business population and earn only 11.9 percent of business sales and
                                                                  receipts.
                                                                     Even those minorities and women who manage against the odds to start their own
                                                                  businesses must compete in a business enterprise system that has long been domi-
                                                                  nated by non-minority male-owned firms.9 The advantages enjoyed by non-minority
                                                                  males in this context are borne out in the statistics. In a groundbreaking pair of
                                                                  studies of employer business closure rates, Professor Ying Lowrey documented that
                                                                  existing African American-owned, Hispanic-owned, Asian and Pacific Islander-
                                                                  owned, and women-owned businesses across a wide variety of industry groups suf-
                                                                  fered substantially higher closure rates during the 2002–2006 period than did their
                                                                  nonminority male counterparts.10 More recently, Professor Rob Fairlie has shown
                                                                  that African American, Hispanic Asian, American Indian and Alaska Native, and
                                                                  female small businesses closed at higher rates than their non-minority male coun-
                                                                  terparts during the first month of widespread COVID–19 induced shelter-in-place
                                                                  restrictions in April of this year.11
                                                                     Even among larger firms, such as those with one or more paid employees, the dis-
                                                                  parities between minorities and women, on the one hand, and non-minority males,
                                                                  on the other, are stark. In 2017, for every dollar in sales and receipts earned by

                                                                    6 See, e.g., U.S. Department of Commerce (2015); Lowrey (2010a); Lowrey (2010b); Marshall
                                                                  (2002); Wainwright (2000).
                                                                    7 See, generally, U.S. Small Business Administration (2010).
                                                                    8 General population statistics are from the U.S. Census Bureau (2017a); civilian labor force
                                                                  and total employment figures are from the Bureau of Labor Statistics (2018a, 2018b, 2018c);
                                                                  business enterprise statistics are from the 2012 Survey of Business Owners, U.S. Census Bureau
                                                                  (2018b). Note: Publicly owned companies have been excluded from all calculations in this report
                                                                  that use Survey of Business Owners or Annual Business Survey statistics.
                                                                    9 See, e.g., Wainwright (2000), pp. 17–22, and the studies cited therein.
                                                                    10 Lowrey, Ying (2010a), pp. 20–21; Lowrey, Ying (2010b), p. 16. The comparison was between
                                                                  non-publicly held establishments that were in business in 2002 but had closed by 2006 versus
                                                                  all non-publicly held establishments in business in 2002.
                                                                    11 Fairlie, Robert (2020). p. 16.




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                                                                  non-minority male-owned employers, African American-owned employers earned 45
                                                                  cents, Hispanic-owned employers earned 57 cents, Asian and Pacific Islander-owned
                                                                  employers earned 63 cents, American Indians and Alaska Native-owned employers
                                                                  earned 67 cents, and women-owned employers earned 61 cents.12
                                                                     The overwhelming majority of businesses have less than 10 employees, and only
                                                                  a small fraction have more than 500 employees. Minority- and women-owned firms
                                                                  are over-represented in the former category and under-represented in the latter. For
                                                                  the smallest firms in 2017 (the most recent data available), 78 percent of non-minor-
                                                                  ity male-owned firms had less than 10 employees, compared to 82.1 percent of Afri-
                                                                  can American-owned firms, 82.3 percent of Hispanic-owned firms, 81.2 percent of
                                                                  Asian and Pacific Islander-owned firms, 82.2 percent of American Indian and Alaska
                                                                  Native-owned firms, and 82.2 percent of women-owned firms.13 For the largest firms
                                                                  in 2017, 0.21 percent of nonminority-owned male firms had 500 or more employees,
                                                                  compared to 0.12 percent of African Americans, 0.1 percent of Hispanics, 0.07 per-
                                                                  cent of Asians and Pacific Islanders, 0.11 percent of Native Americans, and 0.1 per-
                                                                  cent of women.14

                                                                       B. STUDIES CONDUCTED SINCE 2000 PROVIDE STRONG EVIDENCE OF DISPARITIES
                                                                                   AGAINST MINORITY- AND WOMEN-OWNED BUSINESSES
                                                                    As mentioned above, between 2010 and 2013 I served as an expert witness on be-
                                                                  half of the U.S. Department of Justice in its defense of two challenges to the SBA
                                                                  8(a) Program and two challenges to the USDOT DBE Program. As part of this work,
                                                                  I collected and reviewed every known study of M/WBE disparities published since
                                                                  2000.
                                                                  1. Data and Methods
                                                                     Table 1 identifies 95 studies of minority and female business enterprise completed
                                                                  between 2000 and 2012. These studies examined M/WBE participation in public con-
                                                                  tracting and procurement for 127 different public entities and/or funding sources.
                                                                  The studies span 32 different states that collectively account for over 80 percent of
                                                                  the general population of the United States.15 Of the 95 studies, 21 were conducted
                                                                  under my direction. Over the course of these studies, I personally examined and
                                                                  analyzed tens of billions of dollars worth of public sector spending across tens of
                                                                  thousands of contracts and subcontracts. The remaining 74 studies covered an even
                                                                  larger number of public contracts and public dollars.
                                                                     All of the disparity studies in Table 1 examined minority-owned business enter-
                                                                  prises as well as non-minority women-owned business enterprises. Typically, M/
                                                                  WBEs include businesses owned by African Americans, Hispanics, Asians and Pa-
                                                                  cific Islanders, American Indians and Alaska Natives, and non-minority women.
                                                                     A wide variety of government types are represented as well in these disparity
                                                                  studies. Some studies encompassed the entire state (i.e., Indiana, Maryland, Min-
                                                                  nesota, New York, Texas, and Virginia), others were performed for single state
                                                                  agencies (i.e., Department of Transportation studies in Alaska, Arizona, California,
                                                                  Colorado, Georgia, Hawaii, Idaho, Illinois, Kansas, Maryland, Minnesota, Missouri,
                                                                  Montana, Nevada, North Carolina, Oklahoma, Oregon, Virginia, and Washington
                                                                  and the Division of Capital Asset Management and the Housing Finance Agency in
                                                                  Massachusetts), others were done for cities (i.e., Atlanta, Augusta, Austin, Balti-
                                                                  more, Boston, Charlotte, Cincinnati, Columbia, Dayton, Denver, Durham, Fort
                                                                  Worth, Houston, Kansas City, Memphis, Milwaukee, Minneapolis, Nashville, Phila-
                                                                  delphia, Phoenix, Portland, San Antonio, St. Louis, St. Paul, Tallahassee, Tucson,
                                                                  and Tulsa), others covered counties (i.e., Pima, AZ; Broward, FL; Leon, FL; Rich-
                                                                  mond, GA; Wyandotte, KS; Durham, NC; Davidson, TN), and still more were for a
                                                                  variety of special districts including schools, public utilities, housing authorities, air-
                                                                  ports, and transit agencies.
                                                                     All 95 studies identified included contracts and procurements for public works in
                                                                  construction, and a large majority also included contracts in the construction-related
                                                                  professional services (‘‘CRS’’) sector, which includes architecture, engineering, and
                                                                  related services. Construction and CRS activities include the public works per-

                                                                   12 U.S. Census Bureau (2020a). For employer firms, the most recent data are from the 2017

                                                                  Annual Business Survey, released in May 2020.
                                                                   13 U.S. Census Bureau (2018b, 2018c 2018d).
                                                                   14 Ibid.
                                                                   15 U.S. Census Bureau (2011e).




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                                                                  formed by highway departments, transit agencies, and airports under USDOT juris-
                                                                  diction.16
                                                                     Many of the disparity studies in Table 1 encompass public contracting and pur-
                                                                  chasing activities in other industry sectors as well. This reflects the fact that state
                                                                  and local governments, and their prime contractors and vendors, purchase goods
                                                                  and services from practically every major industry. In addition to construction and
                                                                  CRS, these include agriculture, mining, utilities, transportation, wholesale trade, re-
                                                                  tail trade, finance and insurance, real estate, professional and technical services, ad-
                                                                  ministrative and support services, waste management services, educational services,
                                                                  health care and social assistance services, food services, and others. NERA’s most
                                                                  recent study for the State of Maryland, for example, encompassed 695 distinct in-
                                                                  dustries.17
                                                                     In addition to covering construction, CRS, and other industries, the 95 studies in
                                                                  Table 1 span the country geographically, representing all four Census Regions and
                                                                  all nine Census Divisions. In all, 32 states plus the District of Columbia are rep-
                                                                  resented here, as well as 53 of this Committee’s 67 members.
                                                                     As part of my work on behalf of USDOJ, I reviewed all of 95 studies identified
                                                                  in Table 1. Typically, these studies include an Executive Summary, a review of case
                                                                  law pertaining to M/WBEs, a review of the government’s purchasing and contracting
                                                                  policies as they pertain to M/WBEs, a chapter estimating the availability of M/
                                                                  WBEs, a chapter estimating the utilization of M/WBEs, a chapter comparing avail-
                                                                  ability and utilization to assess disparities, and a chapter examining anecdotal evi-
                                                                  dence of discrimination. Often, these disparity studies also included one or more
                                                                  chapters examining evidence of disparities and discrimination in the wider market
                                                                  area, surrounding a particular government’s jurisdiction. These are referred to as
                                                                  ‘‘private sector’’ or ‘‘economy-wide’’ analyses.
                                                                  2. Findings
                                                                     Each study is different. They were prepared by different consultants, for different
                                                                  governments, in different parts of the country, with differing levels of resources.
                                                                  They examined different periods of time and used a variety of methods for assessing
                                                                  utilization, availability, and disparity, and for gathering anecdotal information.18
                                                                     Nevertheless, the striking similarities among these studies strongly outweigh the
                                                                  differences. Foremost among these is an almost universal finding that historical and
                                                                  contemporary discrimination adversely impacts all different types of M/WBEs
                                                                  throughout the United States, in the construction sector, the CRS sector, and in
                                                                  other industry segments as well.
                                                                     To begin to see this, Table 2 presents specific statistical findings from the studies
                                                                  listed in Table 1. One primary function of a disparity study is to gather information
                                                                  on a government entity’s prime contracting and subcontracting activity during the
                                                                  time period being studied. Since the Federal DBE Program applies to both prime
                                                                  contracting and subcontracting, I focused my review on the combined utilization of
                                                                  M/WBEs as both prime contractors and subcontractors.19
                                                                     I reviewed each study’s findings concerning:
                                                                     • The percentage utilization of M/WBEs in construction spending,
                                                                     • The percentage availability of M/WBEs for construction spending,
                                                                     • The percentage utilization of M/WBEs in CRS spending, and
                                                                     • The percentage availability of M/BEs for CRS spending.
                                                                     Several appear more than once in Table 2 since they provided statistical evidence
                                                                  in more than one relevant category. Columns (1) and (2) in Table 2 identify the state
                                                                  and political subdivision for which each disparity study was performed. Columns (3)
                                                                  and (6) present the utilization statistics for construction and CRS, respectively. Col-

                                                                    16 Construction prime contractors and subcontractors also purchase a variety of supplies and
                                                                  materials (e.g., steel, concrete, asphalt), as well as trucking services.
                                                                    17 NERA Economic Consulting (2017), p. 45. However, public sector spending is not typically
                                                                  distributed evenly among industries. In the State of Maryland’s case, 261 industries (38 percent)
                                                                  accounted for 99 percent of all spending over the study period.
                                                                    18 A detailed discussion of the differences in methods employed by different consultants is pro-
                                                                  vided in Wainwright and Holt (2010), pp. 29–53.
                                                                    19 Depending on how any given study’s statistics were presented, I had to carry out certain
                                                                  additional calculations in order to present the information in Table 2 in a consistent manner.
                                                                  For example, a study might show the total number of prime contract construction dollars accru-
                                                                  ing to M/WBEs in one table, the total number of subcontract construction dollars accruing to
                                                                  M/WBEs in another table, and the total number of construction dollars overall in yet another
                                                                  table. Calculating overall M/WBE prime contract and subcontract utilization thereby required
                                                                  adding the figure in the first table to the figure in the second table and dividing the sum by
                                                                  the figure in the third table. These figures, in turn, might then be combined with availability
                                                                  statistics from one or more tables in the study in question to form the relevant disparity index.




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                                                                  umns (4) and (7) present the availability statistics for construction and CRS, respec-
                                                                  tively. Columns (5) and (8) present the disparity indexes for construction and CRS,
                                                                  respectively. Column (9) indicates the years covered by each study. Column (10) pro-
                                                                  vides the page citations for the statistical data presented.
                                                                     The disparity indexes presented in column (5) for construction and column (8) for
                                                                  CRS are formed by dividing the M/WBE utilization percentage by the M/WBE avail-
                                                                  ability percentage, and multiplying the result by 100. A disparity index of 100 or
                                                                  more indicates that M/WBEs are being utilized at or above their market availability
                                                                  level. A disparity index of less than 100 indicates that M/WBEs are being utilized
                                                                  at or below their market availability level. A disparity index of 80 or lower is com-
                                                                  monly taken as an indicator that discrimination is adversely affecting M/WBEs.20
                                                                     The substantial majority of the disparity studies reviewed and presented in Table
                                                                  2 identified large adverse disparities affecting M/WBEs in both construction and
                                                                  CRS.21 There are 206 disparity indexes altogether—127 for the construction sector
                                                                  and 79 for the CRS sector.
                                                                     • In construction, 74 of 127 disparity indexes, or 58 percent, fall at or below 80;
                                                                       and 91 of 127, or 72 percent, are less than 100.
                                                                     • In CRS, 59 of 79 disparity indexes, or 75 percent, fall at or below 80; and 61
                                                                       of 79, or 77 percent, are less than 100.
                                                                     • Combining the results from both industry sectors, 133 of 206 disparity indexes,
                                                                       or 65 percent, fall at or below 80; and 152 of 206, or 74 percent, are less than
                                                                       100.
                                                                     Notably, the general consistency of these results occurs despite these studies hav-
                                                                  ing been undertaken by different consultants, using differing methods, at different
                                                                  points in time, with different budgets, and for a wide variety of state and local gov-
                                                                  ernment agencies in a wide variety of geographic locations. Perhaps most notably,
                                                                  these disparities exist despite the fact that, in the overwhelming majority of studies
                                                                  there was a strong, mature MBE or DBE program in place aimed at eliminating dis-
                                                                  parities. In other words, these disparities are so powerful and so severe that even
                                                                  strong efforts to level the playing field are simply not enough to eradicate them.
                                                                     Eleven different consultants produced the studies in Table 2. However, just four
                                                                  firms produced 75 percent of these studies: MGT of America, NERA Economic Con-
                                                                  sulting, BBC Research & Consulting, and Mason Tillman Associates.
                                                                     • Of the 34 construction disparity indexes from MGT of America, 20 (59 percent)
                                                                       are less than or equal to 80 and 26 (76 percent) are less than or equal to 100.
                                                                       Of the 15 CRS disparity indexes from MGT, 12 (80 percent) are less than or
                                                                       equal to 80 and 12 (80 percent) are less than or equal to 100.
                                                                     • Of the 24 construction disparity indexes from NERA Economic Consulting, 16
                                                                       (67 percent) are less than or equal to 80 and 17 (71 percent) are less than or
                                                                       equal to 100. Of the 20 CRS disparity indexes from NERA, 10 (50 percent) are
                                                                       less than or equal to 80 and 11 (55 percent) are less than or equal to 100.
                                                                     • Of the 23 construction disparity indexes from BBC Research & Consulting, 13
                                                                       (57 percent) are less than or equal to 80 and 17 (74 percent) are less than or
                                                                       equal to 100. Of the 20 CRS disparity indexes from BBC, 17 (85 percent) are
                                                                       less than or equal to 80 and 17 (85 percent) are less than or equal to 100.
                                                                     • Of the 17 construction disparity indexes from Mason Tillman Associates, 13 (76
                                                                       percent) are less than or equal to 80 and 16 (94 percent) are less than or equal
                                                                       to 100. Of the 12 CRS disparity indexes from Mason Tillman, 10 (83 percent)
                                                                       are less than or equal to 80 and 10 (83 percent) are less than or equal to 100.
                                                                     • Of the 29 construction disparity indexes from the balance of consulting firms
                                                                       in Table 2, 12 (41 percent) are less than or equal to 80 and 15 (52 percent) are
                                                                       less than or equal to 100. Of the 12 CRS disparity indexes from the balance
                                                                       of consulting firms, 10 (83 percent) are less than or equal to 80 and 11 (92 per-
                                                                       cent) are less than or equal to 100.
                                                                     Some specific results in Table 2 are highlighted below:
                                                                     • Of the 33 state DOT construction disparity indexes, 26 (79 percent) are less
                                                                       than or equal to 80 and 29 (88 percent) are less than or equal to 100. These
                                                                       include Alaska, Arizona, California, Colorado, Georgia, Hawaii, Idaho, Illinois,
                                                                       Kansas, Minnesota, Missouri, Nevada, North Carolina, Oregon, Texas, Virginia,
                                                                       and Washington.

                                                                     20 Although not the same as statistical significance, the ‘‘four-fifths rule’’ says that a disparity
                                                                  index of less than or equal to 80 (on a scale of zero to 100, zero being perfect disparity and
                                                                  100 being perfect parity), because it is large, or ‘‘substantively’’ significant, indicates the pres-
                                                                  ence of discrimination. See 29 C.F.R. § 1607.4(d).
                                                                     21 In Table 2, disparity indexes of 80 or lower are highlighted in boldface type. Disparity in-
                                                                  dexes above 80 but still less than 100 (which would indicate parity with non-M/WBEs) are high-
                                                                  lighted in boldface italicized type.




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                                                                     • Of the 24 state DOT CRS disparity indexes, 23 (96 percent) are less than or
                                                                       equal to 80 and 23 (96 percent) are less than or equal to 100. These include
                                                                       Arizona, California, Colorado, Georgia, Idaho, Illinois, Missouri, Montana, Ne-
                                                                       vada, North Carolina, Oklahoma, Oregon, Virginia, and Washington. Only Ha-
                                                                       waii was found to have consistently utilized M/WBEs at or above their esti-
                                                                       mated availability in CRS.
                                                                     • Of the 11 statewide (excluding DOTs) construction disparity indexes, 7 (64 per-
                                                                       cent) are less than or equal to 80 and 10 (91 percent) are less than or equal
                                                                       to 100. Of the 4 statewide (excluding DOTs) CRS disparity indexes, 3 (75 per-
                                                                       cent) are less than or equal to 80 and 4 (100 percent) are less than or equal
                                                                       to 100.
                                                                     • Of the 41 city or county construction disparity indexes, 19 (46 percent) are less
                                                                       than or equal to 80 and 25 (61 percent) are less than or equal to 100. Of the
                                                                       22 city or county CRS disparity indexes, 13 (59 percent) are less than or equal
                                                                       to 80 and 13 (59 percent) are less than or equal to 100.
                                                                     • Of the 39 special district (e.g., transit agencies, airports, housing authorities,
                                                                       school districts) construction disparity indexes, 23 (59 percent) are less than or
                                                                       equal to 80 and 27 (69 percent) are less than or equal to 100. Of the 28 special
                                                                       district CRS disparity indexes, 20 (71 percent) are less than or equal to 80 and
                                                                       21 (75 percent) are less than or equal to 100.
                                                                     Finally, in almost all of the studies presented, the statistical findings are accom-
                                                                  panied by anecdotal evidence of discrimination against M/WBEs.22 Many of these
                                                                  studies also include statistical evidence of disparities in the surrounding private sec-
                                                                  tor—in minority and female business formation rates, business owner earnings, and
                                                                  access to commercial loans and capital. This type of statistical evidence is especially
                                                                  important since it helps explain why the large and adverse disparities observed for
                                                                  M/WBEs can be attributed to discrimination rather than to other, non-discrimina-
                                                                  tory factors.
                                                                  3. Conclusions from the Disparity Study Data
                                                                     According to my records, there are at least another 150 disparity studies that
                                                                  have been completed since I finished my work for USDOJ in 2013. There is no doubt
                                                                  in my mind that were I to conduct a comparable analysis on these latest studies,
                                                                  I would find similar results—large and adverse disparities that continue to face M/
                                                                  WBEs throughout the country. In the next two sections of my testimony, I examine
                                                                  the most recent Census Bureau data with respect to M/WBEs.

                                                                   Table 1. Selected Disparity and Availability Studies Performed in the United States Between
                                                                                                            2000–2012
                                                                                                                                                                                                                   Type of             Year
                                                                  State                                   Subdivision                                                          Author                               Study         Completed

                                                                  AK ....    Department of Transportation and Public Facilities                           D. Wilson Consulting Group, LLC                       Disparity .....       2007
                                                                  AZ ....    Arizona Department of Transportation .....................                   MGT of America, Inc. ....................             Disparity .....       2009
                                                                  AZ ....    City of Phoenix .........................................................    MGT of America, Inc. ....................             Disparity .....       2005
                                                                  AZ ....    City of Tucson ..........................................................    D. Wilson Consulting Group, LLC                       Disparity .....       2008
                                                                  AZ ....    Pima County .............................................................    D. Wilson Consulting Group, LLC                       Disparity .....       2008
                                                                  CA ...     Bay Area Rapid Transit (BART) ................................               Mason Tillman Associates, Ltd. ...                    Disparity .....       2009
                                                                  CA ...     California Department of Transportation .................                    BBC Research & Consulting ........                    Disparity .....       2007
                                                                  CA ...     Los Angeles County Metropolitan Transportation                               BBC Research & Consulting ........                    Disparity .....       2010
                                                                             Authority.
                                                                  CA ...     Metrolink—Southern California Regional Rail Au-                              BBC Research & Consulting ........                    Disparity .....       2009
                                                                             thority.
                                                                  CA ...     Orange County Transportation Authority ..................                    BBC Research & Consulting ........                    Disparity .....       2010
                                                                  CA ...     San Diego Association of Governments ...................                     BBC Research & Consulting ........                    Disparity .....       2010
                                                                  CA ...     San Diego Metropolitan Transit System ...................                    BBC Research & Consulting ........                    Disparity .....       2010
                                                                  CA ...     San Mateo County Transit District ...........................                CRA International .........................           Disparity .....       2008
                                                                  CA ...     Santa Clara Valley Transportation Authority ...........                      CRA International .........................           Disparity .....       2007
                                                                  CO ...     City and County of Denver, Denver International                              NERA .............................................    Disparity .....       2006
                                                                             Airport.
                                                                  CO ...     Colorado Department of Transportation ...................                    MGT of America, Inc. ....................             Disparity .....       2001
                                                                  CO ...     Colorado Department of Transportation ...................                    D. Wilson Consulting Group, LLC                       Disparity .....       2009
                                                                  CT ....    Metropolitan District Commission ............................                M3C ...............................................   Disparity .....       2009

                                                                    22 See also, e.g., U.S. Small Business Administration (2010), Aparicio (2009), Asian American
                                                                  Justice Center (2008), Lau (2009), Quon (2008), U.S. Congress (2007), (2008), (2009a), (2009b),
                                                                  and (2009c).




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                                                                    Table 1. Selected Disparity and Availability Studies Performed in the United States Between
                                                                                                      2000–2012—Continued
                                                                                                                                                                                                                    Type of             Year
                                                                  State                                    Subdivision                                                          Author                               Study         Completed

                                                                  DC ...     Washington Suburban Sanitary Commission ...........                            Mason Tillman Associates, Ltd. ...                   Disparity .....       2011
                                                                  FL ....    Broward County ........................................................        MGT of America, Inc. ....................            Disparity .....       2001
                                                                  FL ....    Broward County ........................................................        NERA .............................................   Disparity .....       2010
                                                                  FL ....    City of Tallahassee ...................................................        MGT of America, Inc. ....................            Disparity .....       2004
                                                                  FL ....    Leon County ..............................................................     MGT of America, Inc. ....................            Disparity .....       2009
                                                                  FL ....    School District of Hillsborough County ....................                    Mason Tillman Associates, Ltd. ...                   Disparity .....       2007
                                                                  GA ...     City of Atlanta ..........................................................     Griffin & Strong ............................        Disparity .....       2006
                                                                  GA ...     Consolidated Government of Augusta-Richmond                                    NERA .............................................   Disparity .....       2009
                                                                             County.
                                                                  GA ...     Georgia Department of Transportation ....................                      Boston Research Group, Inc. ........                 Disparity .....       2005
                                                                  GA ...     Georgia Department of Transportation ....................                      BBC Research & Consulting ........                   Disparity .....       2012
                                                                  HI ....    Hawai’i Department of Transportation .....................                     NERA .............................................   Disparity .....       2010
                                                                  ID ....    Idaho Transportation Department ............................                   BBC Research & Consulting ........                   Disparity .....       2007
                                                                  IL .....   Illinois Department of Transportation ......................                   Mason Tillman Associates, Ltd. ...                   Disparity .....       2011
                                                                  IL .....   Illinois State Toll Highway Authority ........................                 Mason Tillman Associates, Ltd. ...                   Disparity .....       2011
                                                                  IL .....   Illinois State Toll Highway Authority ........................                 NERA .............................................   Disparity .....       2006
                                                                  IN ....    Indiana Department of Administration, Indiana                                  BBC Research & Consulting ........                   Disparity .....       2010
                                                                             DOT, Ball State Univ., Indiana State Univ., Indiana
                                                                             Univ., Ivy Tech Comm. College, Purdue Univ., Univ.
                                                                             of Southern Indiana, Vincennes Univ..
                                                                  KS ....    Kansas Department of Transportation .....................                      MGT of America, Inc. ....................            Availability          2003
                                                                  KS; ...    City of Kansas City; Wyandotte County, KS; Kansas                              Mason Tillman Associates, Ltd. ...                   Disparity .....       2006
                                                                  MO         City Area Transit Authority; Kansas City School
                                                                             District, MO.
                                                                  MD ...     City of Baltimore ......................................................       MGT of America, Inc. ....................            Disparity .....       2000
                                                                  MD ...     City of Baltimore ......................................................       NERA .............................................   Disparity .....       2007
                                                                  MD ...     State of Maryland .....................................................        NERA .............................................   Disparity .....       2006
                                                                  MD ...     State of Maryland .....................................................        NERA .............................................   Disparity .....       2011
                                                                  MA ...     City of Boston ...........................................................     Mason Tillman Associates, Ltd. ...                   Disparity .....       2003
                                                                  MA ...     Division of Capital Asset Management ...................                       NERA .............................................   Disparity .....       2006
                                                                  MA ...     Massachusetts Housing Finance Agency .................                         NERA .............................................   Disparity .....       2006
                                                                  MN ...     City of Minneapolis ..................................................         NERA .............................................   Disparity .....       2010
                                                                  MN ...     City of St. Paul and the St. Paul Housing Authority                            MGT of America, Inc. ....................            Disparity .....       2008
                                                                  MN ...     Metropolitan Airports Commission ...........................                   MGT of America, Inc. ....................            Disparity .....       2009
                                                                  MN ...     Metropolitan Council ................................................          MGT of America, Inc. ....................            Disparity .....       2009
                                                                  MN ...     Minnesota Department of Administration ................                        MGT of America, Inc. ....................            Disparity .....       2009
                                                                  MN ...     Minnesota Department of Transportation ................                        NERA .............................................   Availability          2005
                                                                  MN ...     Minnesota Department of Transportation ................                        MGT of America, Inc. ....................            Disparity .....       2009
                                                                  MO ...     Bi-State Development Agency (St. Louis Metro) ......                           NERA .............................................   Disparity .....       2005
                                                                  MO ...     City of St. Louis, The St. Louis Housing Authority,                            MGT of America, Inc. ....................            Disparity .....       2001
                                                                             The Metropolitan St. Louis Sewer District.
                                                                  MO ...     Missouri Department of Transportation ...................                      NERA .............................................   Disparity .....       2012
                                                                  MT ...     Montana Department of Transportation ...................                       D. Wilson Consulting Group, LLC                      Disparity .....       2009
                                                                  NV ...     Nevada Department of Transportation .....................                      BBC Research & Consulting ........                   Disparity .....       2007
                                                                  NY ...     State of New York ....................................................         NERA .............................................   Disparity .....       2010
                                                                  NC ...     City of Charlotte .......................................................      MGT of America, Inc. ....................            Disparity .....       2011
                                                                  NC ...     City of Durham and Durham County .......................                       Mason Tillman Associates, Ltd. ...                   Disparity .....       2000
                                                                  NC ...     Durham County .........................................................        Griffin & Strong ............................        Disparity .....       2007
                                                                  NC ...     North Carolina Department of Transportation .........                          MGT of America, Inc. ....................            Disparity .....       2004
                                                                  NC ...     North Carolina Department of Transportation .........                          Euquant ........................................     Disparity .....       2009
                                                                  OH ...     City of Cincinnati .....................................................       Griffin & Strong ............................        Disparity .....       2002
                                                                  OH ...     City of Dayton ...........................................................     MGT of America, Inc. ....................            Disparity .....       2008
                                                                  OH ...     Northeast Ohio Regional Sewer District ...................                     NERA .............................................   Disparity .....       2010
                                                                  OK ...     City of Tulsa .............................................................    MGT of America, Inc. ....................            Disparity .....       2010
                                                                  OK ...     Oklahoma Department of Transportation .................                        BBC Research & Consulting ........                   Disparity .....       2010
                                                                  OR ...     City of Portland ........................................................      BBC Research & Consulting ........                   Disparity .....       2011
                                                                  OR ...     Oregon Department of Transportation .....................                      MGT of America, Inc. ....................            Disparity .....       2007
                                                                  OR ...     Port of Portland ........................................................      MGT of America, Inc. ....................            Disparity .....       2009
                                                                  OR ...     Portland Development Commission ..........................                     BBC Research & Consulting ........                   Disparity .....       2011
                                                                  PA ....    City of Philadelphia ..................................................        Econsult Corporation ....................            Disparity .....       2007
                                                                  PA ....    City of Philadelphia ..................................................        Econsult Corporation ....................            Disparity .....       2008
                                                                  PA ....    City of Philadelphia ..................................................        Econsult Corporation ....................            Disparity .....       2009




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                                                                   Table 1. Selected Disparity and Availability Studies Performed in the United States Between
                                                                                                     2000–2012—Continued
                                                                                                                                                                                                                       Type of           Year
                                                                  State                                   Subdivision                                                          Author                                   Study       Completed

                                                                  PA ....    City of Philadelphia ..................................................       Econsult Corporation ....................             Disparity .....        2010
                                                                  PA ....    City of Philadelphia ..................................................       Econsult Corporation ....................             Disparity .....        2011
                                                                  PA ....    City of Philadelphia ..................................................       Econsult Corporation ....................             Disparity .....        2012
                                                                  SC ...     City of Columbia ......................................................       MGT of America, Inc. ....................             Disparity .....        2006
                                                                  TN ....    City of Memphis .......................................................       Griffin & Strong ............................         Disparity .....        2010
                                                                  TN ....    Consolidated Government of Nashville and David-                               Griffin & Strong ............................         Disparity .....        2004
                                                                             son County.
                                                                  TN ....    Memphis International Airport .................................               NERA .............................................    Disparity .....        2008
                                                                  TN ....    Nashville International Airport .................................             Griffin & Strong ............................         Disparity .....        2007
                                                                  TX ....    City of Austin ...........................................................    NERA .............................................    Disparity .....        2008
                                                                  TX ....    City of Fort Worth; City of Arlington; DFW Airport;                           Mason Tillman Associates, Ltd. ...                    Disparity .....        2010
                                                                             Fort Worth Independent School District; Fort Worth
                                                                             Transportation Authority; North Texas Tollway Au-
                                                                             thority [North Central Texas Council of Govern-
                                                                             ments].
                                                                  TX ....    City of Houston .........................................................     NERA .............................................    Disparity .....        2012
                                                                  TX ....    City of San Antonio, Alamo Regional Mobility Au-                              MGT of America, Inc. ....................             Disparity .....        2009
                                                                             thority, Brooks Development Authority, CPS Energy,
                                                                             Edwards Aquifer Authority, Port Authority of San
                                                                             Antonio, San Antonio Housing Authority, San Anto-
                                                                             nio Water System, University Health System.
                                                                  TX ....    Dallas Area Rapid Transit Authority (DART) ............                       Mason Tillman Associates, Ltd. ...                    Disparity .....        2003
                                                                  TX ....    State of Texas ..........................................................     Mason Tillman Associates, Ltd. ...                    Disparity .....        2007
                                                                  TX ....    State of Texas ..........................................................     MGT of America, Inc. ....................             Disparity .....        2010
                                                                  UT ....    Salt Lake City International Airport .........................                NERA .............................................    Disparity .....        2009
                                                                  VA ....    Commonwealth of Virginia .......................................              MGT of America, Inc. ....................             Disparity .....        2004
                                                                  VA ....    Commonwealth of Virginia .......................................              MGT of America, Inc. ....................             Disparity .....        2010
                                                                  VA ....    Virginia DOT .............................................................    MGT of America, Inc. ....................             Disparity .....        2004
                                                                  WA ...     Washington Department of Transportation ..............                        NERA .............................................    Availability           2005
                                                                  WI ....    City of Milwaukee .....................................................       Mason Tillman Associates, Ltd. ...                    Disparity .....        2007
                                                                  WI ....    City of Milwaukee .....................................................       D. Wilson Consulting Group, LLC                       Disparity .....        2010


                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                        Between 2000–2012
                                                                                                                                                                                                                                      Page
                                                                  State                      Subdivision                         U-CON          A-CON           D-CON           U-CRS          A-CRS            D-CRS       Years     Spec.
                                                                   (1)                            (2)                               (3)            (4)            (5)             (6)            (7)             (8)         (9)       (11)

                                                                  AK ...    Department of Transportation                           10.52          14.26           73.73                                                     2002-        4-9,
                                                                            and Public Facilities.                                                                                                                           2006       4-11,
                                                                                                                                                                                                                                        5-10,
                                                                                                                                                                                                                                         5-13

                                                                  AZ ...    Arizona Department of Transpor-                          7.03         15.61           45.03            5.39          27.07          19.90       2002-       4-47
                                                                            tation.                                                                                                                                          2007

                                                                  AZ ...    City of Phoenix ............................           11.37          21.48           52.94                                                     2000-       4-29,
                                                                                                                                                                                                                             2004        4-33

                                                                  AZ ...    City of Tucson .............................           24.55            5.76         426.21                                                     2002-        4-9,
                                                                                                                                                                                                                             2006       4-10,
                                                                                                                                                                                                                                        5-10,
                                                                                                                                                                                                                                         5-19




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                             Page
                                                                  State                   Subdivision                     U-CON      A-CON       D-CON    U-CRS    A-CRS   D-CRS    Years    Spec.

                                                                   (1)                         (2)                         (3)        (4)         (5)      (6)      (7)     (8)      (9)      (11)

                                                                  AZ ...   Pima County ................................   19.51        9.43      206.83   19.25    25.10    76.71   2002-        4-9,
                                                                                                                                                                                     2006      4-10,
                                                                                                                                                                                               5-13,
                                                                                                                                                                                               5-16,
                                                                                                                                                                                               5-28,
                                                                                                                                                                                                5-32

                                                                  CA ...   Bay Area Rapid Transit (BART) ..               19.34       34.42       56.20                             2002-       4-8,
                                                                                                                                                                                     2007       5-5,
                                                                                                                                                                                               7-20

                                                                  CA ...   California Department of Trans-                14.34       17.00      84.36    18.90    25.50    74.11   2002-      Figs.
                                                                           portation (federal funds).                                                                                2006   E-26, 29

                                                                  CA ...   California Department of Trans-                11.41       18.70       61.00   12.04    28.20    42.68   2002-      Figs.
                                                                           portation (state funds).                                                                                  2006   E-69, 70

                                                                  CA ...   Los Angeles County Metropolitan                15.01       13.70      109.54   14.44    29.65    48.69   2003-      E-42,
                                                                           Transportation Authority (federal                                                                         2007      E-20,
                                                                           funds).                                                                                                              E-21

                                                                  CA ...   Los Angeles County Metropolitan                12.20       20.80       58.65   17.81    28.80    61.84   2003-      E-13,
                                                                           Transportation Authority (local                                                                           2007      E-22
                                                                           funds).

                                                                  CA ...   Metrolink—Southern California                  10.71       16.00       66.97   62.54    24.58   254.40   2003-      E-42,
                                                                           Regional Rail Authority (federal                                                                          2007      E-20,
                                                                           funds).                                                                                                              E-21

                                                                  CA ...   Metrolink—Southern California                    8.60      30.00       28.65   24.73    40.40    61.22   2003-      E-13,
                                                                           Regional Rail Authority (local                                                                            2007      E-22
                                                                           funds).

                                                                  CA ...   Orange County Transportation                   36.77       26.70      137.70   13.42    23.77    56.47   2003-      E-42,
                                                                           Authority (federal funds).                                                                                2007      E-20,
                                                                                                                                                                                                E-21

                                                                  CA ...   Orange County Transportation                   52.24       30.00      174.13   24.97    31.90    78.27   2003-      E-13,
                                                                           Authority (local funds).                                                                                  2007      E-22

                                                                  CA ...   San Diego Association of Govern-                 8.49      23.60       35.97   27.59    23.54   117.22   2003-      E-42,
                                                                           ments (federal funds).                                                                                    2007      E-20,
                                                                                                                                                                                                E-21

                                                                  CA ...   San Diego Association of Govern-                 0.45      22.50        1.99   18.20    27.70    65.69   2003-      E-13,
                                                                           ments (local funds).                                                                                      2007      E-22

                                                                  CA ...   San Diego Metropolitan Transit                 27.66       33.20      83.30    19.75    26.56    74.37   2003-      E-42,
                                                                           System (federal funds).                                                                                   2007      E-20,
                                                                                                                                                                                                E-21

                                                                  CA ...   San Diego Metropolitan Transit                 26.75       36.90       72.49     0.00   32.90     0.00   2003-      E-13,
                                                                           System (local funds).                                                                                     2007      E-22

                                                                  CA ...   San Mateo County Transit Dis-                    5.56      21.40       26.00                             2002    26, 104
                                                                           trict.

                                                                  CA ...   Santa Clara Valley Transpor-                   17.10       21.40       79.88                             2001-   28, 104,
                                                                           tation Authority.                                                                                         2006       112




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                             Page
                                                                  State                   Subdivision                      U-CON      A-CON       D-CON    U-CRS    A-CRS   D-CRS    Years   Spec.

                                                                   (1)                         (2)                          (3)        (4)         (5)      (6)      (7)     (8)      (9)    (11)

                                                                  CO ..    City and County of Denver, Den-                 12.86       21.92       58.67   25.41    14.97   169.74   2000-      190
                                                                           ver International Airport.                                                                                 2005

                                                                  CO ..    Colorado Department of Trans-                   10.56       20.21       52.25     4.69   24.07    19.48   1996-     3-20
                                                                           portation.                                                                                                 2000

                                                                  CO ..    Colorado Department of Trans-                   16.58       23.17       71.58   21.21    41.37    51.28   2002-     4-5,
                                                                           portation.                                                                                                 2007     4-6,
                                                                                                                                                                                               4-7,
                                                                                                                                                                                               5-8,
                                                                                                                                                                                              5-10,
                                                                                                                                                                                               6-6,
                                                                                                                                                                                                6-7

                                                                  CT ...   Metropolitan District Commission                30.68       19.66      156.07     8.35   18.70    44.64   2005-   V-112,
                                                                                                                                                                                      2008   V-114,
                                                                                                                                                                                             V-116,
                                                                                                                                                                                             V-117,
                                                                                                                                                                                             V-119,
                                                                                                                                                                                             V-121,
                                                                                                                                                                                             V-123,
                                                                                                                                                                                              V-125

                                                                  DC ..    Washington Suburban Sanitary                    29.57       68.38       43.24   31.49    61.12    51.52   2003-    1-15,
                                                                           Commission.                                                                                                2009    1-17,
                                                                                                                                                                                                2-5,
                                                                                                                                                                                                2-7,
                                                                                                                                                                                              4-21,
                                                                                                                                                                                              4-23,
                                                                                                                                                                                              4-36,
                                                                                                                                                                                               4-38

                                                                  FL ...   Broward County ...........................      35.70       40.57      87.99    16.04    44.95    35.68   1991-    4-18,
                                                                                                                                                                                      1999    4-21,
                                                                                                                                                                                              4-28,
                                                                                                                                                                                              4-31,
                                                                                                                                                                                              4-33,
                                                                                                                                                                                               4-37

                                                                  FL ...   Broward County ...........................      28.62       24.10      118.76   26.86    25.87   103.83   2005-      284
                                                                                                                                                                                      2009

                                                                  FL ...   City of Tallahassee .....................       28.50       34.03      83.74                              1996-    4-13,
                                                                                                                                                                                      2000    4-17,
                                                                                                                                                                                               4-19

                                                                  FL ...   Leon County .................................   19.56       11.92      164.04                             2004-    4-10,
                                                                                                                                                                                      2008    4-12,
                                                                                                                                                                                               4-13

                                                                  FL ...   School District of Hillsborough                 30.49       37.58      81.12    24.69    42.99    57.45   2001-      2-5,
                                                                           County.                                                                                                    2004      2-7,
                                                                                                                                                                                                3-4,
                                                                                                                                                                                                3-6,
                                                                                                                                                                                              5-21,
                                                                                                                                                                                              5-23,
                                                                                                                                                                                              5-32,
                                                                                                                                                                                               5-34




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                               Page
                                                                  State                    Subdivision                      U-CON      A-CON       D-CON    U-CRS    A-CRS   D-CRS    Years    Spec.

                                                                   (1)                          (2)                          (3)        (4)         (5)      (6)      (7)     (8)      (9)      (11)

                                                                  GA ...    City of Atlanta .............................   34.02       57.63       59.04   35.03    56.30    62.21   2001-     Vol. I,
                                                                                                                                                                                       2005    19, 21,
                                                                                                                                                                                               22, 30,
                                                                                                                                                                                               46, 59,
                                                                                                                                                                                                    62

                                                                  GA ...    City of Atlanta (Airport, local                 59.17       57.63      102.66                             2001-     Vol. I,
                                                                            dollars).                                                                                                  2005    19, 70,
                                                                                                                                                                                               73, 80

                                                                  GA ...    City of Atlanta (Airport, federal               26.30       57.63       45.63                             2001-     Vol. I,
                                                                            dollars).                                                                                                  2005    19, 83,
                                                                                                                                                                                                   86

                                                                  GA ...    City of Atlanta (Watershed Man-                 23.72       57.63       41.16                             2001-      Vol. I,
                                                                            agement).                                                                                                  2005    19, 21,
                                                                                                                                                                                               22, 88,
                                                                                                                                                                                                91, 95

                                                                  GA ...    Consolidated Government of Au-                    5.91      32.37       18.26   28.65    44.93    63.77   2003-        225
                                                                            gusta-Richmond County.                                                                                     2007

                                                                  GA ...    Georgia Department of Transpor-                   8.46      11.03       76.67                             1999-       111,
                                                                            tation.                                                                                                    2004       119,
                                                                                                                                                                                                  123,
                                                                                                                                                                                                   130

                                                                  GA ...    Georgia Department of Transpor-                 13.23       21.50       61.52     9.31   24.40    38.17   2009-       K-6,
                                                                            tation (federal dollars).                                                                                  2011        K-9

                                                                  GA ...    Georgia Department of Transpor-                   4.81      25.50       18.87   12.26    26.50    46.27   2009-       K-7,
                                                                            tation (state dollars).                                                                                    2011       K-10

                                                                  HI ....   Hawai’i Department of Transpor-                 32.17       54.78       58.70   62.01    51.79   119.73   2003-        331
                                                                            tation.                                                                                                    2008

                                                                  ID ....   Idaho Transportation Department                 14.36       16.90      84.95      6.79   12.90    52.63   2002-      Figs.
                                                                                                                                                                                       2006   E-11, 20

                                                                  IL ....   Illinois Department of Transpor-                11.00       27.33       40.25   21.22    29.82    71.18   2006-      4-10,
                                                                            tation.                                                                                                    2008      4-11,
                                                                                                                                                                                                   5-3,
                                                                                                                                                                                                   5-4,
                                                                                                                                                                                                 7-18,
                                                                                                                                                                                                 7-19,
                                                                                                                                                                                                 7-21,
                                                                                                                                                                                                  7-22

                                                                  IL ....   Illinois State Toll Highway Au-                 11.43       19.56       58.44   23.58    19.03   123.91   2000-    49, 50,
                                                                            thority.                                                                                                   2005    61, 63

                                                                  IL ....   Illinois State Toll Highway Au-                 11.38       39.39       28.89   16.42    41.02    40.04   2006-        4-8,
                                                                            thority.                                                                                                   2009      4-10,
                                                                                                                                                                                                   5-4,
                                                                                                                                                                                                   5-6,
                                                                                                                                                                                                 7-15,
                                                                                                                                                                                                 7-17,
                                                                                                                                                                                                 7-20,
                                                                                                                                                                                                  7-22




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                            Page
                                                                  State                    Subdivision                     U-CON      A-CON       D-CON    U-CRS   A-CRS   D-CRS    Years   Spec.

                                                                   (1)                          (2)                         (3)        (4)         (5)      (6)     (7)     (8)      (9)    (11)

                                                                  IN ....   State of Indiana (INDOT and                    10.03       10.90      92.03                             2006-      O-2
                                                                            INDOA).                                                                                                  2009

                                                                  IN ....   State of Indiana (Higher Educ.)                10.69       15.10       70.79                            2006-      M-2
                                                                                                                                                                                     2009

                                                                  KS; ..    City of Kansas City, KS ...............        18.34       25.31       72.44   15.34   36.21    42.37   2002-     3-5,
                                                                  MO                                                                                                                 2004     3-7,
                                                                                                                                                                                              4-4,
                                                                                                                                                                                              4-6,
                                                                                                                                                                                             6-21,
                                                                                                                                                                                             6-23,
                                                                                                                                                                                             6-30,
                                                                                                                                                                                              6-32

                                                                  KS; ..    Kansas City School District, MO                34.20       25.60      133.58                            2002-      3-5,
                                                                  MO                                                                                                                 2004      4-4,
                                                                                                                                                                                             6-21,
                                                                                                                                                                                              6-28

                                                                  KS ...    Kansas Department of Transpor-                 10.31       13.75       75.01                            2000-    2-10,
                                                                            tation.                                                                                                  2001    2-12,
                                                                                                                                                                                              3-2,
                                                                                                                                                                                               3-3

                                                                  MD ..     City of Baltimore .........................    23.02       36.63       62.84   30.14   21.60   139.51   1990-    4-20,
                                                                                                                                                                                     1998    4-26,
                                                                                                                                                                                             4-29,
                                                                                                                                                                                             4-31,
                                                                                                                                                                                             4-33,
                                                                                                                                                                                              4-34

                                                                  MD ..     City of Baltimore .........................    25.85       22.88      112.98   31.88   27.32   116.69   2000-      217
                                                                                                                                                                                     2005

                                                                  MD ..     State of Maryland .......................      15.81       24.00       65.88   24.52   28.46   86.16    2000-      206
                                                                                                                                                                                     2004

                                                                  MD ..     State of Maryland .......................      23.45       30.26       77.51   22.31   41.34    53.97   2005-      328
                                                                                                                                                                                     2009

                                                                  MA ..     City of Boston .............................   23.76       24.23      98.08    10.26   47.02    21.83   1999-      1-5,
                                                                                                                                                                                     2001      1-7,
                                                                                                                                                                                               2-4,
                                                                                                                                                                                               2-6,
                                                                                                                                                                                             4-22,
                                                                                                                                                                                             4-24,
                                                                                                                                                                                             4-29,
                                                                                                                                                                                              4-31

                                                                  MA ..     Division of Capital Asset Man-                 19.44       10.39      187.10   33.79   17.86   189.19   1999-      199
                                                                            agement.                                                                                                 2004

                                                                  MA ..     Massachusetts Housing Finance                  25.80       10.86      237.57                            2000-      203
                                                                            Agency.                                                                                                  2004

                                                                  MN ..     City of Minneapolis .....................        7.57      19.54       38.73   13.65   19.08    71.51   2003-      234
                                                                                                                                                                                     2007




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                              Page
                                                                  State                   Subdivision                     U-CON      A-CON       D-CON    U-CRS    A-CRS    D-CRS    Years    Spec.

                                                                   (1)                         (2)                         (3)        (4)         (5)      (6)      (7)      (8)      (9)      (11)

                                                                  MN ..    City of St. Paul ...........................   15.23       15.05      101.17                              2002-      4-21,
                                                                                                                                                                                      2006      4-22,
                                                                                                                                                                                                4-28,
                                                                                                                                                                                                 4-29

                                                                  MN ..    St. Paul Housing Authority ..........            6.33      10.43       60.67                              2002-       6-6,
                                                                                                                                                                                      2006      6-12,
                                                                                                                                                                                                6-18

                                                                  MN ..    Metropolitan Airports Commis-                    2.05      11.28       18.21                              2004-        3-8,
                                                                           sion.                                                                                                      2007      3-10,
                                                                                                                                                                                                3-12,
                                                                                                                                                                                                 3-13

                                                                  MN ..    Metropolitan Council ...................         0.16       3.63        4.41                              2003-       3-8,
                                                                                                                                                                                      2007      3-10,
                                                                                                                                                                                                3-13

                                                                  MN ..    Minnesota Department of Admin-                   3.42       2.74      124.97                              2002-       3-8,
                                                                           istration.                                                                                                 2007      3-10,
                                                                                                                                                                                                3-14

                                                                  MN ..    Minnesota Department of Trans-                   5.55      15.18       36.56                              2000-        69,
                                                                           portation (federal funds).                                                                                 2004         72

                                                                  MN ..    Minnesota Department of Trans-                   2.92      15.18       19.24                              2000-        69,
                                                                           portation (state funds).                                                                                   2004         75

                                                                  MN ..    Minnesota Department of Trans-                   2.40       3.52       68.06                              2002-       3-7,
                                                                           portation.                                                                                                 2007       3-9,
                                                                                                                                                                                                3-12

                                                                  MO ..    Bi-State Development Agency (St.               21.16       20.14      105.06   18.98    15.29    124.13   1997-        167
                                                                           Louis Metro).                                                                                              2003

                                                                  MO ..    City of St. Louis ..........................   19.06       15.89      119.97   17.44    27.46     63.52   1995-     Ex. pp.
                                                                                                                                                                                      1999    2, 4, 7,
                                                                                                                                                                                                9, 11,
                                                                                                                                                                                                   12

                                                                  MO ..    The Metropolitan St. Louis Sewer               13.91       15.89      87.54    15.42    27.46     56.16   1995-    Ex. pp.
                                                                           District.                                                                                                  1999    84, 86,
                                                                                                                                                                                              89, 91,
                                                                                                                                                                                               93, 94

                                                                  MO ..    Missouri Department of Trans-                  13.35       20.37       65.56   13.05    21.52     60.66   2005-        220
                                                                           portation (federal funds).                                                                                 2009

                                                                  MO ..    Missouri Department of Trans-                    6.49      20.19       32.16   12.28    21.48     57.16   2005-        224
                                                                           portation (state funds).                                                                                   2009

                                                                  MT ..    Montana Department of Trans-                   11.32        2.01      563.36   11.68    16.09     72.58   2000-       4-6,
                                                                           portation.                                                                                                 2006       4-8,
                                                                                                                                                                                                5-18,
                                                                                                                                                                                                5-29,
                                                                                                                                                                                                5-53,
                                                                                                                                                                                                 5-64

                                                                  NV ...   Nevada Department of Transpor-                   8.70      15.60       55.79     3.03     7.80    38.89   2000-      Figs.
                                                                           tation (federal funds).                                                                                    2006   E-11, 20




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                             Page
                                                                  State                   Subdivision                     U-CON      A-CON       D-CON    U-CRS    A-CRS   D-CRS    Years    Spec.

                                                                   (1)                         (2)                         (3)        (4)         (5)      (6)      (7)     (8)      (9)      (11)

                                                                  NV ...   Nevada Department of Transpor-                   8.34      12.90       64.65     3.05   10.80    28.26   2000-      Figs.
                                                                           tation (state funds).                                                                                     2006   E-38, 47

                                                                  NY ...   State of New York .......................      12.39       22.74       54.48   19.43    24.53    79.21   2004-       292
                                                                                                                                                                                     2008

                                                                  NC ..    City of Charlotte ..........................   19.28       35.74       53.95   13.66    18.55    73.66   2005-      3-11,
                                                                                                                                                                                     2010      3-13,
                                                                                                                                                                                               3-15,
                                                                                                                                                                                               3-16,
                                                                                                                                                                                               3-19,
                                                                                                                                                                                               3-20,
                                                                                                                                                                                                3-23

                                                                  NC ..    City of Durham and Durham                      12.79       27.38       46.72                             1996-       3-4,
                                                                           County.                                                                                                   1999       3-6,
                                                                                                                                                                                                5-9,
                                                                                                                                                                                               5-11

                                                                  NC ..    Durham County ...........................        6.24      72.85        8.57   20.23    27.30    74.13   2001-    76, 78,
                                                                                                                                                                                     2005    82, 85,
                                                                                                                                                                                            94, 118

                                                                  NC ..    North Carolina Department of                   13.41       12.70      105.59                             1999-      4-16,
                                                                           Transportation (divisionally-let).                                                                        2003      4-26,
                                                                                                                                                                                               4-49,
                                                                                                                                                                                               4-72,
                                                                                                                                                                                                4-90

                                                                  NC ..    North Carolina Department of                     9.83      29.92       32.87   14.41    20.00    72.06   1999-      4-52,
                                                                           Transportation (centrally-let,                                                                            2003      4-56,
                                                                           state funds).                                                                                                       4-70,
                                                                                                                                                                                               4-76,
                                                                                                                                                                                               4-80,
                                                                                                                                                                                                4-90

                                                                  NC ..    North Carolina Department of                   11.43       29.92       38.22     4.86   20.00    24.30   1999-      4-62,
                                                                           Transportation (centrally-let, fed-                                                                       2003      4-66,
                                                                           eral funds).                                                                                                        4-70,
                                                                                                                                                                                               4-84,
                                                                                                                                                                                               4-88,
                                                                                                                                                                                                4-90

                                                                  NC ..    North Carolina Department of                     8.65      24.98       34.62                             2004-    89, 90,
                                                                           Transportation.                                                                                           2008       138

                                                                  OH ..    City of Cincinnati ........................    16.41       18.33      89.51    12.20    22.48    54.28   1995-    44, 45,
                                                                                                                                                                                     2001     49, 50

                                                                  OH ..    City of Dayton .............................     4.73      23.91       19.80                             2001-      4-11,
                                                                                                                                                                                     2006      4-17,
                                                                                                                                                                                               4-19,
                                                                                                                                                                                               4-20,
                                                                                                                                                                                                4-24

                                                                  OH ..    Northeast Ohio Regional Sewer                  24.44       22.31      109.55   23.78    22.03   107.94   2004-       263
                                                                           District.                                                                                                 2008




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                               Page
                                                                  State                    Subdivision                      U-CON      A-CON       D-CON    U-CRS    A-CRS    D-CRS    Years   Spec.

                                                                   (1)                          (2)                          (3)        (4)         (5)      (6)      (7)      (8)      (9)    (11)

                                                                  OK ...   City of Tulsa ................................     4.72      20.77       22.73   24.70    22.51    109.71   2002-      4-8,
                                                                                                                                                                                        2008    4-13,
                                                                                                                                                                                                4-14,
                                                                                                                                                                                                4-15,
                                                                                                                                                                                                4-20,
                                                                                                                                                                                                4-22,
                                                                                                                                                                                                 4-23

                                                                  OK ...   Oklahoma Department of Trans-                    19.47       12.40      156.99     3.96   19.10     20.73   2004-      K-6,
                                                                           portation (federal funds).                                                                                   2009       K-9

                                                                  OK ...   Oklahoma Department of Trans-                    19.82       15.40      128.70     5.00   19.90     25.13   2004-      K-7,
                                                                           portation (state funds).                                                                                     2009     K-10

                                                                  OR ..    City of Portland ...........................       7.49       5.10      146.85   34.98    14.60    239.62   2004-      L-5,
                                                                                                                                                                                        2009      M-2

                                                                  OR ..    Oregon Department of Transpor-                   19.07       27.55       69.20     3.84   46.31      8.30   2000-     4-12,
                                                                           tation.                                                                                                      2007    4-21,
                                                                                                                                                                                                 4-25,
                                                                                                                                                                                               4-111,
                                                                                                                                                                                               4-120,
                                                                                                                                                                                               4-123,
                                                                                                                                                                                                4-124

                                                                  OR ..    Port of Portland ...........................     18.59       15.16      122.66     9.94   27.97     35.53   2002-    4-11,
                                                                                                                                                                                        2007    4-13,
                                                                                                                                                                                                4-15,
                                                                                                                                                                                                 4-19

                                                                  OR ..    Portland Development Commis-                       9.29      12.37       75.06                              2004-      L-2,
                                                                           sion.                                                                                                        2009       L-5

                                                                  PA ...   City of Philadelphia ....................        12.90       10.80      119.44                              2006    17, 21

                                                                  PA ...   City of Philadelphia ....................        13.80       10.80      127.78                              2007    36, 51

                                                                  PA ...   City of Philadelphia ....................        12.70       10.80      117.59                              2008     vi, 45

                                                                  PA ...   City of Philadelphia ....................          9.30      10.80       86.11                              2009    viii, 41

                                                                  PA ...   City of Philadelphia ....................        17.40       14.90      116.78                              2010     vi, vii

                                                                  PA ...   City of Philadelphia ....................        13.30       11.40      116.67                              2011      v, vii

                                                                  SC ...   City of Columbia .........................         3.42      19.03       17.96   18.15    17.14    105.90   2002-    4-10,
                                                                                                                                                                                        2005    4-15,
                                                                                                                                                                                                4-16,
                                                                                                                                                                                                4-17,
                                                                                                                                                                                                4-24,
                                                                                                                                                                                                 4-26

                                                                  TN ...   City of Memphis ..........................       18.77       18.84      99.62                               2002-      112,
                                                                                                                                                                                        2007      116,
                                                                                                                                                                                                  129

                                                                  TN ...   Consolidated Government of                         0.37       6.25        5.90     0.04     2.39     1.63   1999-   57, 65,
                                                                           Nashville and Davidson County                                                                                2003   66, 68,
                                                                           (Metro Purchasing).                                                                                                      69




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                                Page
                                                                  State                   Subdivision                      U-CON      A-CON        D-CON    U-CRS    A-CRS    D-CRS    Years    Spec.

                                                                   (1)                         (2)                          (3)        (4)          (5)      (6)      (7)      (8)      (9)      (11)

                                                                  TN ...   Consolidated Government of                        0.02       4.27         0.40     3.30     7.24    45.58   1999-    58, 98,
                                                                           Nashville and Davidson County                                                                                2003   99, 100,
                                                                           (Nashville Public Schools).                                                                                              102

                                                                  TN ...   Consolidated Government of                      12.70       12.70      100.00      0.20     7.97     2.50   1999-    60, 76,
                                                                           Nashville and Davidson County                                                                                2003    77, 79
                                                                           (Metro Nashville Airport).

                                                                  TN ...   Consolidated Government of                      20.70       16.56       125.03   29.33    10.41    281.71   1999-    61, 85,
                                                                           Nashville and Davidson County                                                                                2003    86, 88,
                                                                           (Metro Development and Housing                                                                                            89
                                                                           Authority).

                                                                  TN ...   Memphis International Airport ....              18.69       27.99        66.77   13.88    34.32     40.44   1999-       229
                                                                                                                                                                                        2005

                                                                  TN ...   Nashville International Airport ....              9.81       9.68       101.37     7.53     8.87   84.84    2003-    36, 38,
                                                                                                                                                                                        2006    39, 40,
                                                                                                                                                                                                 47, 49

                                                                  TX ...   City of Austin ..............................   29.83       27.54       108.32   39.39    31.79    123.91   2002-       206
                                                                                                                                                                                        2006

                                                                  TX ...   City of Arlington ..........................    10.94       66.58        16.43   13.11    54.03     24.27   2002-        2-9,
                                                                                                                                                                                        2007      2-11,
                                                                                                                                                                                                    3-5,
                                                                                                                                                                                                    3-7,
                                                                                                                                                                                                    3-9,
                                                                                                                                                                                                  5-24,
                                                                                                                                                                                                  5-26,
                                                                                                                                                                                                  5-33,
                                                                                                                                                                                                  5-35,
                                                                                                                                                                                                   5-37

                                                                  TX ...   City of Fort Worth ........................     38.41       60.28        63.72   60.81    54.05    112.51   2002-        2-9,
                                                                                                                                                                                        2007      2-11,
                                                                                                                                                                                                    3-5,
                                                                                                                                                                                                    3-7,
                                                                                                                                                                                                  5-26,
                                                                                                                                                                                                  5-28,
                                                                                                                                                                                                  5-37,
                                                                                                                                                                                                   5-39

                                                                  TX ...   DFW Airport .................................   50.72       62.82       80.74    57.53    53.80    106.93   2002-        2-9,
                                                                                                                                                                                        2007      2-11,
                                                                                                                                                                                                    3-5,
                                                                                                                                                                                                    3-7,
                                                                                                                                                                                                  5-26,
                                                                                                                                                                                                  5-28,
                                                                                                                                                                                                  5-37,
                                                                                                                                                                                                   5-39




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                          Page
                                                                  State                   Subdivision                     U-CON      A-CON       D-CON    U-CRS   A-CRS   D-CRS   Years   Spec.

                                                                   (1)                         (2)                         (3)        (4)         (5)      (6)     (7)     (8)     (9)    (11)

                                                                  TX ...   Fort Worth Independent School                  27.75       66.06       42.01   28.91   53.89   53.64   2002-      2-9,
                                                                           District.                                                                                               2007    2-11,
                                                                                                                                                                                             3-4,
                                                                                                                                                                                             3-6,
                                                                                                                                                                                           5-26,
                                                                                                                                                                                           5-28,
                                                                                                                                                                                           5-37,
                                                                                                                                                                                            5-39

                                                                  TX ...   North Texas Tollway Authority .....            18.60       58.34       31.88   14.75   53.56   27.54   2003-      2-9,
                                                                                                                                                                                   2007    2-11,
                                                                                                                                                                                             3-4,
                                                                                                                                                                                             3-6,
                                                                                                                                                                                           5-26,
                                                                                                                                                                                           5-28,
                                                                                                                                                                                           5-37,
                                                                                                                                                                                            5-39

                                                                  TX ...   City of Houston ...........................    29.87       34.74      85.97                            2005-      191
                                                                                                                                                                                   2010

                                                                  TX ...   City of San Antonio .....................      35.19       28.14      125.09                           2004-      3-9,
                                                                                                                                                                                   2007    3-15,
                                                                                                                                                                                           3-16,
                                                                                                                                                                                            3-17

                                                                  TX ...   Dallas Area Rapid Transit Au-                  31.44       68.38       45.98                           1996-      3-5,
                                                                           thority (DART).                                                                                         2001      4-5,
                                                                                                                                                                                             4-7,
                                                                                                                                                                                           6-22,
                                                                                                                                                                                           6-29,
                                                                                                                                                                                            6-31

                                                                  TX ...   State of Texas .............................   13.71       51.57       26.58   18.27   55.74   32.79   2002-      3-8,
                                                                                                                                                                                   2005    3-10,
                                                                                                                                                                                             4-6,
                                                                                                                                                                                           4-12,
                                                                                                                                                                                           6-21,
                                                                                                                                                                                           6-23,
                                                                                                                                                                                           6-37,
                                                                                                                                                                                            6-39

                                                                  TX ...   State of Texas (TxDOT) ................          7.07      10.14       69.67                           2006-    4-10,
                                                                                                                                                                                   2008    4-19,
                                                                                                                                                                                            5-11

                                                                  TX ...   State of Texas (State Agencies)                24.04       22.10      108.78                           2006-    4-10,
                                                                                                                                                                                   2008    4-20,
                                                                                                                                                                                           4-21,
                                                                                                                                                                                            5-11

                                                                  TX ...   State of Texas (Universities) .......          21.66       22.10      98.01                            2006-    4-10,
                                                                                                                                                                                   2008    4-20,
                                                                                                                                                                                           4-21,
                                                                                                                                                                                            5-11




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                                                                  Table 2. M/WBE Utilization, Availability, and Disparity: Selected Studies Performed in the U.S.
                                                                                                 Between 2000–2012—Continued
                                                                                                                                                                                                     Page
                                                                  State                  Subdivision                    U-CON      A-CON       D-CON    U-CRS      A-CRS       D-CRS      Years      Spec.

                                                                   (1)                        (2)                        (3)        (4)         (5)      (6)         (7)        (8)        (9)        (11)

                                                                  TX ...   State of Texas (Medical Institu-             21.95       22.10      99.29                                     2006-         4-10,
                                                                           tions).                                                                                                        2008         4-20,
                                                                                                                                                                                                       4-21,
                                                                                                                                                                                                        5-11

                                                                  UT ...   Salt Lake City International Air-              5.32      17.03       31.24     0.79      18.25        4.33    2001-           258
                                                                           port.                                                                                                          2006

                                                                  VA ...   Commonwealth of Virginia ..........            3.39      15.55       21.78                                    2006-         4-10,
                                                                                                                                                                                          2009         4-12,
                                                                                                                                                                                                       4-20,
                                                                                                                                                                                                        4-26

                                                                  VA ...   Commonwealth of Virginia ..........            1.35      14.66        9.19                                    1998-         4-16,
                                                                                                                                                                                          2002         4-23,
                                                                                                                                                                                                       4-27,
                                                                                                                                                                                                        4-32

                                                                  VA ...   Virginia DOT (federal funds) .......           6.59      10.26       64.21     9.53      15.89       59.99    1998-       11, 15,
                                                                                                                                                                                          2002       18, 22,
                                                                                                                                                                                                      26, 29

                                                                  VA ...   Virginia DOT (state funds) ..........          8.52      10.26      82.99      5.41      15.89       34.08    1998-       34, 38,
                                                                                                                                                                                          2002       41, 45,
                                                                                                                                                                                                      49, 52

                                                                  WA ..    Washington Department of                     14.32       19.59       73.10    10.44      14.88       70.16    1999-       63, 66,
                                                                           Transportation (federal funds).                                                                                2003            72

                                                                  WA ..    Washington Department of                       2.97      19.59       15.16    10.66      14.88       71.64    1999-       63, 69,
                                                                           Transportation (state funds).                                                                                  2003            75

                                                                  WI ...   City of Milwaukee ........................   18.94       40.91       46.29                                     2005         5-11,
                                                                                                                                                                                                        6-5,
                                                                                                                                                                                                        6-26

                                                                  WI ...   City of Milwaukee ........................   31.21       13.77      226.74                                    2005-          4-7,
                                                                                                                                                                                          2008          4-9,
                                                                                                                                                                                                        5-2,
                                                                                                                                                                                                         5-7
                                                                    Note: Disparity indexes of 80 or lower are highlighted in boldface type. Disparity indexes above 80 but lower than 100 are highlighted in
                                                                  boldface italic type.

                                                                           C. THERE IS STRONG EVIDENCE OF DISPARITIES BETWEEN UTILIZATION AND
                                                                               AVAILABILITY IN AGGREGATE U.S. BUSINESS ENTERPRISE ACTIVITY
                                                                     A key rationale for the advent of public sector policies such as the USDOT DBE
                                                                  Program was the Federal Government’s desire to prevent its own passive participa-
                                                                  tion in private sector discrimination in business enterprise activity.23 Therefore, it
                                                                  is important to examine the best available evidence regarding how minorities and
                                                                  women fare in the economy as a whole with respect to business enterprise activity.
                                                                  In order to do this, I present evidence from the U.S. Census Bureau’s past and
                                                                  present data collection efforts dedicated to M/WBEs.
                                                                     The Survey of Business Owners and Self-Employed Persons (SBO) collected data
                                                                  on the number, sales, employment, and payrolls of businesses owned by minorities,
                                                                  women, and non-minority males. This survey was conducted every 5 years from

                                                                     23 City of Richmond v. J. A. Croson Company, 488 U.S. 469, at 492 (‘‘Thus, if the city could
                                                                  show that it had essentially become a ’passive participant’ in a system of racial exclusion prac-
                                                                  ticed by elements of the local construction industry, we think it clear that the city could take
                                                                  affirmative steps to dismantle such a system.’’).




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                                                                  1972 to 2012 as part of the Economic Census program. Data from the 2012 SBO,
                                                                  the most recent available, were released in December 2015. In mid-2018, the Census
                                                                  Bureau announced that the SBO would be discontinued and only partially replaced
                                                                  with a new survey called the Annual Business Survey (ABS).24 Unfortunately, the
                                                                  ABS is restricted to firms with paid employees only, as opposed to the SBO that
                                                                  also included nonemployer firms.25 Data from the 2017 ABS, the most recent avail-
                                                                  able, were released in May 2020.26 The SBO and ABS cover women and five groups
                                                                  of minorities: (1) African Americans, (2) Hispanics, (3) Asians, (4) Native Hawaiians
                                                                  and Other Pacific Islanders, and (5) American Indians and Alaskan Natives. Com-
                                                                  parative information for non-minority male-owned firms is also included.27
                                                                     The SBO and ABS contain a wealth of information on the character of minority
                                                                  and female business enterprise in the U.S. as a whole as well as in individual states
                                                                  and sub-state divisions.28 In the remainder of this section, I present national evi-
                                                                  dence from the 2012 SBO and the 2017 ABS for the economy as whole, as well as
                                                                  for the construction and architecture/engineering industries that are the main bene-
                                                                  ficiaries of Federal surface and aviation transportation funding.
                                                                  1. Results from the 2012 Survey of Business Owners
                                                                          a. Economy-Wide Results
                                                                     I begin with the 2012 SBO—the most recent and last data from this important
                                                                  survey. Table 3 contains data for the U.S. as a whole and the economy-wide (i.e.
                                                                  all industries combined). Panel A in this table summarizes the SBO results for each
                                                                  race and/or sex grouping. For example, Panel A shows a total of 27.18 million firms
                                                                  in the U.S. in 2012 (column 1) with overall sales and receipts of $11.964 trillion (col-
                                                                  umn 2). Of these 27.18 million firms, 5.14 million had one or more employees (col-
                                                                  umn 3) and these 5.14 million firms had overall sales and receipts of $10.965 trillion
                                                                  (column 4). Column (5) shows a total of 56.059 million employees on the payroll of
                                                                  these 5.14 million firms and a total annual payroll expense of $2.096 trillion (col-
                                                                  umn 6).
                                                                     The remaining rows in Panel A provide comparable statistics for nonminority
                                                                  male-owned, women-owned, and minority-owned firms. For example, Table 3 shows
                                                                  that there were 2.6 million African American-owned firms counted in the SBO, and
                                                                  that these 2.6 million firms registered $150.2 billion in sales and receipts. It also
                                                                  shows that 109,137 of these African American-owned firms had one or more employ-
                                                                  ees, and that they employed a total of 975,052 workers with an annual payroll total
                                                                  of $27.69 billion.
                                                                     Panel B in Table 3 converts the figures in Panel A to percentage distributions
                                                                  within each column. For example, Column (1) in Panel B of Table 3 shows that Afri-
                                                                  can American-owned firms were 9.51 percent of all firms in the U.S. and women-
                                                                  owned firms were 36.35 percent. Additionally, 12.16 percent of firms were Hispanic-
                                                                  owned, 7.06 percent were Asian-owned, 1.0 percent were American Indian- and
                                                                  Alaska Native-owned, and 0.20 percent were Native Hawaiian- and Other Pacific Is-
                                                                  lander-owned.
                                                                     Column (2) in Panel B provides the same percentage distribution for overall sales
                                                                  and receipts. Table 3, for example, shows that nonminority males owned 45.18 per-
                                                                  cent of all firms and earned 73.45 percent of all sales and receipts. In contrast:
                                                                     • Although African Americans owned 9.51 percent of all firms in the U.S. in 2012,
                                                                       they earned only 1.26 percent of all sales and receipts.
                                                                     • Although Hispanics owned 12.16 percent of all firms, they earned only 3.96 per-
                                                                       cent, of all sales and receipts.
                                                                     • Although Asians owned 7.06 percent of all firms, they earned only 5.85 percent,
                                                                       of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 1.0 percent of all firms,
                                                                       they earned only 0.32 percent of all sales and receipts.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.20 percent of
                                                                       all firms, they earned only 0.07 percent of all sales and receipts.

                                                                       24 U.S. Census Bureau (2018e).
                                                                     25 U.S. Census Bureau (2018f). In 2012, according to the SBO, there were about 5.1 million
                                                                  firms with paid employees and more than 22 million nonemployer firms.
                                                                     26 U.S. Census Bureau (2020c).
                                                                     27 In the American Community Survey Public Use Microdata Samples (ACS PUMS), discussed
                                                                  below, the unit of analysis is the business owner, or self-employed person. In the SBO and ABS
                                                                  data, the unit of analysis is the business itself rather than the business owner. Furthermore,
                                                                  unlike most other business statistics, including the other components of the Economic Census,
                                                                  the unit of analysis in the SBO and ABS is the firm, rather than the establishment.
                                                                     28 Appendix A, below, provides state-level data from the 2017 ABS. Appendices B, C and D,
                                                                  below, provide state-level data from the 2012, 2007 and 2002 SBO.




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                                                                     • Although women owned firms 36.35 percent of all firms, they earned only 11.87
                                                                       percent of all sales and receipts.
                                                                     These disparities between the availability and utilization of minority- and women-
                                                                  owned firms can be viewed directly from the disparity indexes in Panel C of Table
                                                                  3. For example, Panel C shows that African American-owned firms in 2012 received
                                                                  just 13.2 percent of what would be expected based on their availability in the mar-
                                                                  ket. Panel C shows as well that women-owned firms received just 32.65 percent of
                                                                  what would be expected based on their availability in the market. For Hispanics,
                                                                  the figure was 32.55 percent. For Asians, the figure was 82.85 percent. For Amer-
                                                                  ican Indians and Alaska Natives, the figure was 32.33 percent, and for Native Ha-
                                                                  waiians and Other Pacific Islanders, the figure was 33.76 percent. These disparities
                                                                  are all adverse, and statistically significant. The disparities are all large as well,
                                                                  with the exception of Asian-owned firms.
                                                                     We can also compare sales and receipts per firm among all firms in 2012. In Table
                                                                  3, for example, average per firm sales and receipts for non-minority male-owned
                                                                  firms was $715.6 thousand. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $58.1 thousand. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned firms, African American-owned firms re-
                                                                       ceived just 8 cents.
                                                                     • For Hispanic-owned firms, average per firm sales and receipts was $143.3 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Hispanic-owned firms received just 20 cents.
                                                                     • For Asian-owned firms, average per firm sales and receipts was $364.7 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Asian-owned firms received just 51 cents.
                                                                     • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                       and receipts was $142.3 thousand. In other words, for every dollar of sales and
                                                                       receipts earned by non-minority male-owned firms, American Indian- and Alas-
                                                                       ka Native-owned firms received just 20 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                       sales and receipts was $148.6 thousand. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                       Other Pacific Islander-owned firms received just 21 cents.
                                                                     • For women-owned firms, average per firm sales and receipts was $143.7 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, women-owned firms received just 20 cents.
                                                                     Turning to employer firms, we see from column (3) in Table 3, that although non-
                                                                  minority male-owned firms were 57.11 percent of all employer firms, they accounted
                                                                  for 74.98 percent of all employer firm sales and receipts. In contrast:
                                                                     • Although African Americans owned 2.12 percent of all employer firms in the
                                                                       U.S. in 2012, they earned only 0.94 percent of all sales and receipts.
                                                                     • Although Hispanics firms 5.6 percent of all employer firms, they earned only
                                                                       3.47 percent of all sales and receipts.
                                                                     • Although Asians owned 9.37 percent of all employer firms, they earned only
                                                                       5.72 percent of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 0.51 percent of all em-
                                                                       ployer firms, they earned only 0.29 percent of all sales and receipts.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.09 percent of
                                                                       all employer firms, they earned only 0.06 percent of all sales and receipts.
                                                                     • Although women owned 20.16 percent of all employer firms, they earned only
                                                                       10.86 percent of all sales and receipts.
                                                                     The economy-wide employer firm disparity indexes for 2012 appear in Panel C of
                                                                  Table 3. Panel C shows that African American-owned firms in 2012 received just
                                                                  44.4 percent of what would be expected based on their availability in the market.
                                                                  Women-owned firms received just 53.85 percent of what would be expected based
                                                                  on their availability in the market. For Hispanics, the figure was 61.91 percent. For
                                                                  Asians, the figure was 61.11 percent. For American Indians and Alaska Natives, the
                                                                  figure was 56.64 percent, and for Native Hawaiians and Other Pacific Islanders, the
                                                                  figure was 64.40 percent. These disparities are all large, adverse, and statistically
                                                                  significant.
                                                                     Considering sales and receipts among employer firms in 2012. Table 3 shows a
                                                                  figure of $2.8 million for non-minority male-owned employer firms. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $947.9 thousand. In other words, for every dollar of sales and re-
                                                                       ceipts earned by non-minority male-owned firms, African American-owned firms
                                                                       received just 34 cents.




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                                                                     • For Hispanic-owned firms, average per firm sales and receipts was $1.32 mil-
                                                                       lion. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Hispanic-owned firms received just 47 cents.
                                                                     • For Asian-owned firms, average per firm sales and receipts was $1.3 million.
                                                                       In other words, for every dollar of sales and receipts earned by non-minority
                                                                       male-owned firms, Asian-owned firms received just 47 cents.
                                                                     • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                       and receipts was $1.21 million. In other words, for every dollar of sales and re-
                                                                       ceipts earned by non-minority male-owned firms, American Indian- and Alaska
                                                                       Native-owned firms received just 43 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                       sales and receipts was $1.37 million. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                       Other Pacific Islander-owned firms received just 49 cents.
                                                                     • For women-owned firms, average per firm sales and receipts was $1.15 million.
                                                                       In other words, for every dollar of sales and receipts earned by non-minority
                                                                       male-owned firms, women-owned firms received just 41 cents.
                                                                     The problem of minority- and women-owned firms earning less has important con-
                                                                  sequences that ripple throughout the economy. Because these firms make less, they
                                                                  have to pay their employees less. This obviously compounds race and gender dispari-
                                                                  ties to the extent that minority- and women-owned firms hire proportionately more
                                                                  minority and female employees. In addition, it reduces the wealth accruing to mi-
                                                                  norities and women and thus hinders any would-be minority and women entre-
                                                                  preneurs in their efforts to create and grow their own firms thus reinforcing the
                                                                  negative consequences of social and economic disadvantage. Table 3 shows that av-
                                                                  erage payroll per employee at non-minority male-owned employer firms in 2012 was
                                                                  $40,573. In contrast:
                                                                     • For African American-owned employers, average payroll per employee was just
                                                                       $28,398. In other words, for every $1 in wages earned by employees at non-mi-
                                                                       nority male-owned firms, employees at African American-owned firms earned
                                                                       only 70 cents.
                                                                     • For Hispanic-owned employers average payroll per employee was just $30,416.
                                                                       In other words, for every $1 in wages earned by employees at non-minority
                                                                       male-owned firms, employees at Hispanic-owned firms earned only 75 cents.
                                                                     • For Asian-owned employers average payroll per employee was just $30,942. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at Asian-owned firms earned only 76 cents.
                                                                     • For American Indian- and Alaska Native-owned employers average payroll per
                                                                       employee was just $33,599. In other words, for every $1 in wages earned by em-
                                                                       ployees at non-minority male-owned firms, employees at American Indian- and
                                                                       Alaska Native-owned firms earned just 83 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employers, average
                                                                       payroll per employee was just $36,681. In other words, for every $1 in wages
                                                                       earned by employees at non-minority male-owned firms, employees at Native
                                                                       Hawaiian- and Other Pacific Islander-owned firms earned just 90 cents.
                                                                     • For women-owned employers average payroll per employee was just $31,278. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at women-owned firms earned only 77 cents.




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                                                                             Table 3. Disparity Ratios from the 2012 Survey of Business Owners, United States,
                                                                                                                All Industries
                                                                                                                                  Sales and                         Sales and
                                                                                                            Number of             Receipts          Employer        Receipts                           Payroll
                                                                                                              Firms                ($000s)           Firms           ($000s)         Employees         ($000s)

                                                                                                                 (1)                 (2)                (3)            (4)              (5)              (6)

                                                                  Panel A. Levels

                                                                  All Firms .......................         27,179,380          11,964,077,871      5,136,203     10,964,584,749     56,058,563    2,096,442,212
                                                                  Non-minority male ........                12,280,591           8,787,915,377      2,933,198      8,221,010,815     37,750,711    1,531,662,394
                                                                  African American ..........                2,584,403             150,203,163        109,137        103,451,510        975,052       27,689,957
                                                                  Hispanic ........................          3,305,873             473,635,944        287,501        379,994,999      2,329,553       70,855,704
                                                                  Asian .............................        1,917,902             699,492,422        481,026        627,532,399      3,572,577      110,543,615
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................              54,749             8,136,445            4,706        6,469,957        39,001          1,430,591
                                                                  Am. Indian & Alaska
                                                                  Native ...........................            272,919             38,838,125         26,179         31,654,165        208,178        6,994,509
                                                                  Female ..........................           9,878,397          1,419,834,295      1,035,655      1,190,586,438      8,431,614      263,720,252

                                                                  Panel B. Column Percentages

                                                                  All Firms .......................            100.00%               100.00%         100.00%           100.00%        100.00%            100.00%
                                                                  Non-minority male ........                    45.18%                73.45%          57.11%            74.98%         67.34%             73.06%
                                                                  African American ..........                    9.51%                 1.26%           2.12%             0.94%          1.74%              1.32%
                                                                  Hispanic ........................             12.16%                 3.96%           5.60%             3.47%          4.16%              3.38%
                                                                  Asian .............................            7.06%                 5.85%           9.37%             5.72%          6.37%              5.27%
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................               0.20%                   0.07%         0.09%               0.06%       0.07%              0.07%
                                                                  Am. Indian & Alaska
                                                                  Native ...........................              1.00%                 0.32%            0.51%            0.29%          0.37%              0.33%
                                                                  Female ..........................              36.35%                11.87%           20.16%           10.86%         15.04%             12.58%

                                                                  Panel C. Disparity Ratios                                         (2) vs. (1)                       (4) vs. (3)    (5) vs. (3)        (6) vs. (3)

                                                                  Non-minority male .................................                 162.56                            131.29         117.92             127.93
                                                                  African American ...................................                 13.20                             44.40          81.86              62.16
                                                                  Hispanic .................................................           32.55                             61.91          74.24              60.38
                                                                  Asian .....................................................          82.85                             61.11          68.05              56.30
                                                                  Native Hawaiian/Pac. Islander ..............                         33.76                             64.40          75.93              74.48
                                                                  Am. Indian & Alaska Native .................                         32.33                             56.64          72.86              65.46
                                                                  Female ...................................................           32.65                             53.85          74.59              62.39
                                                                     Source: Author’s calculations using 2012 SBO. Notes: (1) Figures are rounded. Rounding was performed subsequent to any mathematical
                                                                  calculations; (2) Excludes publicly owned, foreign-owned, and not-for-profit firms; (3) Totals for ‘‘All Firms’’ includes firms that were equally
                                                                  nonminority-minority owned; (4) Statistically significant disparity indexes are italicized; (5) ‘‘n/a’’ indicates that data were not disclosed due
                                                                  to confidentiality or other publication restrictions.

                                                                         b. Results for the Construction Sector
                                                                     Table 4 shows comparable 2012 SBO data for the construction sector in the U.S.
                                                                  as a whole.
                                                                     Column (2) in Panel B of Table 4 shows that nonminority males owned 62.85 per-
                                                                  cent of all firms and earned 78.02 percent of all sales and receipts. In contrast:
                                                                     • Although African Americans owned 4.67 percent of all firms in the U.S. in 2012,
                                                                       they earned only 0.93 percent of all sales and receipts.
                                                                     • Although Hispanics owned 16.24 percent of all firms, they earned only 4.65 per-
                                                                       cent, of all sales and receipts.
                                                                     • Although Asians owned 2.63 percent of all firms, they earned only 1.28 percent,
                                                                       of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 1.23 percent of all firms,
                                                                       they earned only 0.62 percent of all sales and receipts.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.19 percent of
                                                                       all firms, they earned only 0.13 percent of all sales and receipts.
                                                                     • Although women owned firms 9.08 percent of all firms, they earned only 7.75
                                                                       percent of all sales and receipts.
                                                                     The associated 2012 disparity indexes for firms in the construction sector can be
                                                                  viewed directly in Panel C of Table 4. Panel C shows that African American-owned
                                                                  firms in 2012 received just 19.88 percent of what would be expected based on their




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                                                                  availability in the market. Panel C shows as well that women-owned firms received
                                                                  85.37 percent of what would be expected based on their availability in the market.
                                                                  For Hispanics, the figure was 28.64 percent. For Asians, the figure was 48.74 per-
                                                                  cent. For American Indians and Alaska Natives, the figure was 50.19 percent, and
                                                                  for Native Hawaiians and Other Pacific Islanders, the figure was 66.26 percent.
                                                                  These disparities are all adverse, and statistically significant. The disparities are all
                                                                  large as well, with the exception of women-owned firms.
                                                                     We can also compare sales and receipts per firm among all firms in construction
                                                                  in 2012. In Table 4 average per firm sales and receipts for non-minority male-owned
                                                                  firms was $508.9 thousand. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $81.5 thousand. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned firms, African American-owned firms re-
                                                                       ceived just 16 cents.
                                                                     • For Hispanic-owned firms, average per firm sales and receipts was $117.4 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Hispanic-owned firms received just 23 cents.
                                                                     • For Asian-owned firms, average per firm sales and receipts was $199.8 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Asian-owned firms received just 39 cents.
                                                                     • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                       and receipts was $205.8 thousand. In other words, for every dollar of sales and
                                                                       receipts earned by non-minority male-owned firms, American Indian- and Alas-
                                                                       ka Native-owned firms received just 40 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                       sales and receipts was $271.7 thousand. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                       Other Pacific Islander-owned firms received just 53 cents.
                                                                     • For women-owned firms, average per firm sales and receipts was $350 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, women-owned firms received just 69 cents.
                                                                     Turning to employer firms, we see from column (3) in Table 4, that although non-
                                                                  minority male-owned firms were 69.87 percent of all employer firms, they accounted
                                                                  for 79.09 percent of all employer firm sales and receipts. In contrast:
                                                                     • Although African Americans owned 1.19 percent of all employer firms in the
                                                                       U.S. in 2017, they earned only 0.77 percent of all sales and receipts.
                                                                     • Although Hispanics firms 6.07 percent of all employer firms, they earned only
                                                                       3.59 percent of all sales and receipts.
                                                                     • Although Asians owned 1.66 percent of all employer firms, they earned only
                                                                       1.19 percent of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 0.76 percent of all em-
                                                                       ployer firms, they earned only 0.57 percent of all sales and receipts.
                                                                     • Native Hawaiians and Other Pacific Islanders owned 0.11 percent of all em-
                                                                       ployer firms, and they earned 0.12 percent of all sales and receipts, essentially
                                                                       at parity.
                                                                     • Although women owned 8.55 percent of all employer firms, they earned only
                                                                       7.86 percent of all sales and receipts.
                                                                     The employer firm disparity indexes for construction in 42012 appear in Panel C
                                                                  of Table 4. Panel C shows that African American-owned firms in 2012 received just
                                                                  64.51 percent of what would be expected based on their availability in the market.
                                                                  Women-owned firms received just 91.88 percent of what would be expected based
                                                                  on their availability in the market. For Hispanics, the figure was 59.14 percent. For
                                                                  Asians, the figure was 71.94 percent. For American Indians and Alaska Natives, the
                                                                  figure was 74.52 percent, and for Native Hawaiians and Other Pacific Islanders, the
                                                                  figure was 101.89 percent. The disparities for African Americans, Hispanics, Asians
                                                                  and American Indians and Alaska Natives are all large, adverse, and statistically
                                                                  significant. The disparity for women is adverse, and statistically significant. The dis-
                                                                  parity for Native Hawaiians and Other Pacific Islanders is not statistically signifi-
                                                                  cant.
                                                                     Considering sales and receipts among employer firms in 2012, Table 4 shows a
                                                                  figure of $1.92 million for non-minority male-owned employer firms. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $1.1 million. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned firms, African American-owned firms re-
                                                                       ceived just 57 cents.




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                                                                    • For Hispanic-owned firms, average per firm sales and receipts was $1.01 mil-
                                                                      lion. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                      ity male-owned firms, Hispanic-owned firms received just 52 cents.
                                                                    • For Asian-owned firms, average per firm sales and receipts was $1.22 million.
                                                                      In other words, for every dollar of sales and receipts earned by non-minority
                                                                      male-owned firms, Asian-owned firms received just 64 cents.
                                                                    • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                      and receipts was $1.27 million. In other words, for every dollar of sales and re-
                                                                      ceipts earned by non-minority male-owned firms, American Indian- and Alaska
                                                                      Native-owned firms received just 66 cents.
                                                                    • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                      sales and receipts was $1.73 million. In other words, for every dollar of sales
                                                                      and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                      Other Pacific Islander-owned firms received just 90 cents.
                                                                    • For women-owned firms, average per firm sales and receipts was $1.56 million.
                                                                      In other words, for every dollar of sales and receipts earned by non-minority
                                                                      male-owned firms, women-owned firms received just 81 cents.
                                                                    As discussed above, these disparities extend to the employees of minority- and
                                                                  women-owned firms as well and thus cause a ripple effect that further damages
                                                                  women and minorities. Table 4 shows that average payroll per employee at non-mi-
                                                                  nority male-owned employer firms in 2012 was $48,736. In contrast:
                                                                    • For African American-owned employers, average payroll per employee was just
                                                                      $42,824. In other words, for every $1 in wages earned by employees at non-mi-
                                                                      nority male-owned firms, employees at African American-owned firms earned
                                                                      only 88 cents.
                                                                    • For Hispanic-owned employers average payroll per employee was just $37,977.
                                                                      In other words, for every $1 in wages earned by employees at non-minority
                                                                      male-owned firms, employees at Hispanic-owned firms earned only 78 cents.
                                                                    • For Asian-owned employers average payroll per employee was just $45,450. In
                                                                      other words, for every $1 in wages earned by employees at non-minority male-
                                                                      owned firms, employees at Asian-owned firms earned only 93 cents.
                                                                    • For American Indian- and Alaska Native-owned employers average payroll per
                                                                      employee was just $44,763. In other words, for every $1 in wages earned by em-
                                                                      ployees at non-minority male-owned firms, employees at American Indian- and
                                                                      Alaska Native-owned firms earned just 92 cents.
                                                                    • For Native Hawaiian- and Other Pacific Islander-owned firms, on the other
                                                                      hand, was $49,870. In other words, for every $1 in wages earned by employees
                                                                      at non-minority male-owned firms, employees at Native Hawaiian- and Other
                                                                      Pacific Islander-owned firms earned $1.02—essentially at par with non-minority
                                                                      male-owned firms.
                                                                    • For women-owned employers average payroll per employee was just $46,509. In
                                                                      other words, for every $1 in wages earned by employees at non-minority male-
                                                                      owned firms, employees at women-owned firms earned only 95 cents.




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                                                                             Table 4. Disparity Ratios from the 2012 Survey of Business Owners, United States,
                                                                                                                Construction
                                                                                                                                 Sales and                          Sales and
                                                                                                            Number of            Receipts          Employer         Receipts                       Payroll
                                                                                                              Firms               ($000s)           Firms            ($000s)         Employees     ($000s)

                                                                                                                 (1)                (2)                (3)             (4)              (5)          (6)

                                                                  Panel A. Levels

                                                                  All Firms .......................           2,928,015         1,200,413,658          637,296     1,083,093,941      4,764,280   225,039,336
                                                                  Non-minority male ........                  1,840,218           936,510,929          445,288       856,603,507      3,581,982   174,571,576
                                                                  African American ..........                   136,729            11,141,919            7,594         8,325,857         39,883     1,707,968
                                                                  Hispanic ........................             475,472            55,830,007           38,704        38,900,840        222,161     8,437,113
                                                                  Asian .............................            76,883            15,362,433           10,567        12,919,296         54,404     2,472,635
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................                5,551           1,507,949                724      1,253,656           4,803      239,527
                                                                  Am. Indian & Alaska
                                                                  Native ...........................              35,969            7,401,462            4,836        6,124,399         29,700      1,329,464
                                                                  Female ..........................              265,733           93,002,152           54,511       85,116,364        435,718     20,264,904

                                                                  Panel B. Column Percentages

                                                                  All Firms .......................            100.00%              100.00%         100.00%            100.00%        100.00%        100.00%
                                                                  Non-minority male ........                    62.85%               78.02%          69.87%             79.09%         75.18%         77.57%
                                                                  African American ..........                    4.67%                0.93%           1.19%              0.77%          0.84%          0.76%
                                                                  Hispanic ........................             16.24%                4.65%           6.07%              3.59%          4.66%          3.75%
                                                                  Asian .............................            2.63%                1.28%           1.66%              1.19%          1.14%          1.10%
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................               0.19%                  0.13%         0.11%                0.12%       0.10%         0.11%
                                                                  Am. Indian & Alaska
                                                                  Native ...........................               1.23%                  0.62%         0.76%                0.57%       0.62%         0.59%
                                                                  Female ..........................                9.08%                  7.75%         8.55%                7.86%       9.15%         9.01%

                                                                  Panel C. Disparity Ratios

                                                                  Non-minority male .................................                124.13                             113.19         107.60        111.02
                                                                  African American ...................................                19.88                              64.51          70.25         63.69
                                                                  Hispanic .................................................          28.64                              59.14          76.78         61.73
                                                                  Asian .....................................................         48.74                              71.94          68.87         66.27
                                                                  Native Hawaiian/Pac. Islander ..............                        66.26                              101.89          88.74         93.69
                                                                  Am. Indian & Alaska Native .................                        50.19                              74.52          82.15         77.85
                                                                  Female ...................................................          85.37                              91.88         106.92        105.28
                                                                       Source and Notes: See Table 6.
                                                                         c. Results for the Professional, Scientific, and Technical Services Sector
                                                                     Table 8 shows comparable 2012 SBO data for the professional, scientific, and tech-
                                                                  nical services sector in the U.S. as a whole.
                                                                     Column (2) in Panel B of Table 8 shows that nonminority males owned 47.45 per-
                                                                  cent of all firms and earned 66.95 percent of all sales and receipts. In contrast:
                                                                     • Although African Americans owned 5.35 percent of all firms in the U.S. in 2012,
                                                                       they earned only 1.79 percent of all sales and receipts.
                                                                     • Although Hispanics owned 7.19 percent of all firms, they earned only 3.82 per-
                                                                       cent of all sales and receipts.
                                                                     • Although Asians owned 7.16 percent of all firms, they earned 7.72 percent of
                                                                       all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 0.8 percent of all firms,
                                                                       they earned only 0.36 percent of all sales and receipts.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.16 percent of
                                                                       all firms, they earned only 0.11 percent of all sales and receipts.
                                                                     • Although women-owned firms were 34.5 percent of all firms, they earned only
                                                                       15.81 percent of all sales and receipts.
                                                                     The associated 2012 disparity indexes for firms in the construction sector can be
                                                                  viewed directly in Panel C of Table 8. Panel C shows that African American-owned
                                                                  firms in 2012 received just 33.42 percent of what would be expected based on their
                                                                  availability in the market. Panel C shows as well that women-owned firms received
                                                                  45.82 percent of what would be expected based on their availability in the market.
                                                                  For Hispanics, the figure was 53.17 percent. For Asians, the figure was 107.9 per-




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                                                                                                                  66
                                                                  cent. For American Indians and Alaska Natives, the figure was 45.12 percent, and
                                                                  for Native Hawaiians and Other Pacific Islanders, the figure was 65.32 percent.
                                                                  With the exception of Asians, these disparities are all large, adverse, and statis-
                                                                  tically significant.
                                                                     We can also compare sales and receipts per firm among all firms in professional
                                                                  services in 2012. In Table 8, average per firm sales and receipts for non-minority
                                                                  male-owned firms was $319.9 thousand. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $75.8 thousand. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned firms, African American-owned firms re-
                                                                       ceived just 24 cents.
                                                                     • For Hispanic-owned firms, average per firm sales and receipts was $120.6 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Hispanic-owned firms received just 38 cents.
                                                                     • For Asian-owned firms, average per firm sales and receipts was $244.78 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Asian-owned firms received just 76 cents.
                                                                     • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                       and receipts was $102.3 thousand. In other words, for every dollar of sales and
                                                                       receipts earned by non-minority male-owned firms, American Indian- and Alas-
                                                                       ka Native-owned firms received just 32 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                       sales and receipts was $148.1 thousand. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                       Other Pacific Islander-owned firms received just 46 cents.
                                                                     • For women-owned firms, average per firm sales and receipts was $103.9 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, women-owned firms received just 32 cents.
                                                                     Turning to employer firms, we see from column (3) in Table 8, that although non-
                                                                  minority male-owned firms were 59 percent of all employer firms, they accounted
                                                                  for 69.13 percent of all employer firm sales and receipts. In contrast:
                                                                     • Although African Americans owned 1.85 percent of all employer firms in the
                                                                       U.S. in 2012, they earned only 1.52 percent of all sales and receipts.
                                                                     • Although Hispanics firms 3.95 percent of all employer firms, they earned only
                                                                       3.45 percent of all sales and receipts.
                                                                     • Asians owned 6.79 percent of all employer firms, and they earned 7.9 percent
                                                                       of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 0.48 percent of all em-
                                                                       ployer firms, they earned only 0.3 percent of all sales and receipts.
                                                                     • Native Hawaiians and Other Pacific Islanders owned 0.08 percent of all em-
                                                                       ployer firms, and they earned 0.1 percent of all sales and receipts.
                                                                     • Although women owned 22.1 percent of all employer firms, they earned only
                                                                       13.81 percent of all sales and receipts.
                                                                     The employer firm disparity indexes for construction in 42012 appear in Panel C
                                                                  of Table 8. Panel C shows that African American-owned firms in 2012 received just
                                                                  82.26 percent of what would be expected based on their availability in the market.
                                                                  Women-owned firms received just 62.47 percent of what would be expected based
                                                                  on their availability in the market. For Hispanics, the figure was 87.16 percent. For
                                                                  Asians, the figure was 116.31 percent. For American Indians and Alaska Natives,
                                                                  the figure was 60.94 percent, and for Native Hawaiians and Other Pacific Islanders,
                                                                  the figure was 116.31 percent. The disparities for women and American Indians and
                                                                  Alaska Natives are large, adverse, and statistically significant. The disparities for
                                                                  African Americans and Hispanics are adverse and statistically significant. The dis-
                                                                  parities for Asians is not adverse and is statistically significant. The disparity for
                                                                  Native Hawaiians and Other Pacific Islanders is not statistically significant.
                                                                     Considering sales and receipts among employer firms in 2012, Table 8 shows a
                                                                  figure of $1.16 million for non-minority male-owned employer firms. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $816.2 thousand. In other words, for every dollar of sales and re-
                                                                       ceipts earned by non-minority male-owned firms, African American-owned firms
                                                                       received just 70 cents.
                                                                     • For Hispanic-owned firms, average per firm sales and receipts was $864.9 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, Hispanic-owned firms received just 74 cents.
                                                                     • For Asian-owned firms, average per firm sales and receipts was $1.15 million.
                                                                       In other words, for every dollar of sales and receipts earned by non-minority




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                                                                       male-owned firms, Asian-owned firms received just 99 cents, just slightly below
                                                                       parity.
                                                                     • For American Indian- and Alaska Native-owned firms, average per firm sales
                                                                       and receipts was $604.7 thousand. In other words, for every dollar of sales and
                                                                       receipts earned by non-minority male-owned firms, American Indian- and Alas-
                                                                       ka Native-owned firms received just 52 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned firms, average per firm
                                                                       sales and receipts was $1.27 million. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned firms, Native Hawaiian- and
                                                                       Other Pacific Islander-owned firms received just $1.10, slightly above parity.
                                                                     • For women-owned firms, average per firm sales and receipts was $619.9 thou-
                                                                       sand. In other words, for every dollar of sales and receipts earned by non-minor-
                                                                       ity male-owned firms, women-owned firms received just 53 cents.
                                                                     Considering the employees of minority- and women-owned employer firms in the
                                                                  professional services sector, Table 8 shows that average payroll per employee at
                                                                  non-minority male-owned employer firms in 2012 was $63,240. In contrast:
                                                                     • For African American-owned employers, average payroll per employee was just
                                                                       $54,911. In other words, for every $1 in wages earned by employees at non-mi-
                                                                       nority male-owned firms, employees at African American-owned firms earned
                                                                       only 88 cents.
                                                                     • For Hispanic-owned employers average payroll per employee was just $51,813.
                                                                       In other words, for every $1 in wages earned by employees at non-minority
                                                                       male-owned firms, employees at Hispanic-owned firms earned only 78 cents.
                                                                     • For Asian-owned employers average payroll per employee was just $66,788. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at Asian-owned firms earned only 93 cents.
                                                                     • For American Indian- and Alaska Native-owned employers average payroll per
                                                                       employee was just $44,013. In other words, for every $1 in wages earned by em-
                                                                       ployees at non-minority male-owned firms, employees at American Indian- and
                                                                       Alaska Native-owned firms earned just 92 cents.
                                                                     • For women-owned employers average payroll per employee was just $49,128. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at women-owned firms earned only 95 cents.
                                                                     Payroll per employee for Native Hawaiian- and Other Pacific Islander-owned
                                                                  firms, on the other hand, was $69,386. In other words, for every $1 in wages earned
                                                                  by employees at non-minority male-owned firms, employees at Native Hawaiian-
                                                                  and Other Pacific Islander-owned firms earned $1.10—slightly above par with non-
                                                                  minority male-owned firms.




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                                                                             Table 5. Disparity Ratios from the 2012 Survey of Business Owners, United States,
                                                                                                            Professional Services
                                                                                                                                Sales and                          Sales and
                                                                                                            Number of           Receipts          Employer         Receipts                       Payroll
                                                                                                              Firms              ($000s)           Firms            ($000s)         Employees     ($000s)

                                                                                                                 (1)               (2)                (3)             (4)              (5)          (6)

                                                                  Panel A. Levels

                                                                  All Firms .......................           3,868,657         877,237,881           748,444      742,626,210       4,652,991   277,172,802
                                                                  Non-minority male ........                  1,835,748         587,306,112           441,573      513,381,557       3,050,082   192,887,690
                                                                  African American ..........                   206,942          15,682,967            13,822       11,281,769          81,170     4,457,109
                                                                  Hispanic ........................             278,066          33,525,181            29,582       25,584,292         170,953     8,857,606
                                                                  Asian .............................           276,960          67,766,453            50,834       58,666,210         345,376    23,067,037
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................                6,292           931,973                 600        764,525           3,680      255,342
                                                                  Am. Indian & Alaska
                                                                  Native ...........................             30,966           3,168,244             3,627        2,193,127         17,882        787,037
                                                                  Female ..........................           1,334,561         138,669,937           165,437      102,552,393        774,717     38,060,358

                                                                  Panel B. Column Percentages

                                                                  All Firms .......................            100.00%             100.00%         100.00%            100.00%        100.00%        100.00%
                                                                  Non-minority male ........                    47.45%              66.95%          59.00%             69.13%         65.55%         69.59%
                                                                  African American ..........                    5.35%               1.79%           1.85%              1.52%          1.74%          1.61%
                                                                  Hispanic ........................              7.19%               3.82%           3.95%              3.45%          3.67%          3.20%
                                                                  Asian .............................            7.16%               7.72%           6.79%              7.90%          7.42%          8.32%
                                                                  Native Hawaiian/Pac.
                                                                  Islander .........................               0.16%                 0.11%         0.08%                0.10%       0.08%         0.09%
                                                                  Am. Indian & Alaska
                                                                  Native ...........................              0.80%               0.36%            0.48%             0.30%          0.38%         0.28%
                                                                  Female ..........................              34.50%              15.81%           22.10%            13.81%         16.65%        13.73%

                                                                  Panel C. Disparity Ratios

                                                                  Non-minority male .................................               141.09                             117.17         111.11        117.95
                                                                  African American ...................................               33.42                              82.26          94.46         87.07
                                                                  Hispanic .................................................         53.17                              87.16          92.96         80.85
                                                                  Asian .....................................................       107.90                             116.31         109.29        122.53
                                                                  Native Hawaiian/Pac. Islander ..............                       65.32                              128.42          98.66        114.92
                                                                  Am. Indian & Alaska Native .................                       45.12                              60.94          79.30         58.59
                                                                  Female ...................................................         45.82                              62.47          75.32         62.12
                                                                       Source and Notes: See Table 6.

                                                                  2. Results from the 2017 Annual Survey of Businesses
                                                                          a. Economy-Wide Results
                                                                     Turning now to the 2017 ABS, Table 6, below, presents results for all industries
                                                                  combined (i.e. economy-wide) and for the United States as a whole. Panel A summa-
                                                                  rizes the ABS results for each race and/or sex group. For example, Panel A shows
                                                                  a total of 5.47 million employer firms in the U.S. in 2017 (column 1) with overall
                                                                  sales and receipts of $12.689 trillion (column 2). These 5.47 million firms had a total
                                                                  of 62.99 million employees (column 3) and a total annual payroll expense of $2.618
                                                                  trillion (column 4).
                                                                     The remaining rows in Panel A provide comparable statistics for non-minority
                                                                  male-owned, women-owned, and minority-owned firms. For example, Table 6 shows
                                                                  that there were 124,004 African American-owned employer firms counted in 2017,
                                                                  and that these 124,004 firms registered $127.851 billion in sales and receipts. It also
                                                                  shows that these African American-owned firms employed a total of 1.21 million
                                                                  workers with an annual payroll total of $36.105 billion.
                                                                     Panel B in Table 6 converts the figures in Panel A to percentage distributions
                                                                  within each column. For example, Column (1) in Panel B of Table 6 shows that Afri-
                                                                  can Americans owned just 2.27 percent of all employer firms in the U.S. and women
                                                                  owned just 15.62 percent. Additionally, 5.88 percent of employer firms were His-
                                                                  panic-owned, 10.15 percent were Asian-owned, 0.45 percent were American Indian-
                                                                  and Alaska Native-owned, and 0.13 percent were Native Hawaiian- and Other Pa-
                                                                  cific Islander-owned.




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                                                                     Column (2) in Panel B provides the same percentage distribution for overall sales
                                                                  and receipts for employer firms. Table 6, for example, shows that non-minority
                                                                  males owned 52.08 percent of all employer firms and earned 70.71 percent of all
                                                                  sales and receipts. In contrast:
                                                                     • Although African Americans owned 2.27 percent of all employer firms in the
                                                                       U.S. in 2017, they earned only 1.01 percent of all sales and receipts.
                                                                     • Although Hispanics firms 5.88 percent of all employer firms, they earned only
                                                                       3.33 percent of all sales and receipts.
                                                                     • Although Asians owned 10.15 percent of all employer firms, they earned only
                                                                       6.42 percent of all sales and receipts.
                                                                     • Although American Indians and Alaska Natives owned 0.45 percent of all em-
                                                                       ployer firms, they earned only 0.3 percent of all sales and receipts.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.13 percent of
                                                                       all employer firms, they earned only 0.07 percent of all sales and receipts.
                                                                     • Although women owned 15.62 percent of all employer firms, they earned only
                                                                       9.6 percent of all sales and receipts.
                                                                     These disparities between the availability and utilization of minority- and women-
                                                                  owned firms can be viewed directly from the disparity indexes in Panel C of Table
                                                                  6. For example, Panel C shows that African American-owned employer firms in 2017
                                                                  received just 44.48 percent of what would be expected based on their availability
                                                                  in the market.29 Panel C shows as well that women-owned firms received just 61.44
                                                                  percent of what would be expected based on their availability in the market. For
                                                                  Hispanics, the figure was 56.6 percent. For Asians, the figure was 63.27 percent.
                                                                  For American Indians and Alaska Natives, the figure was 66.89 percent, and for Na-
                                                                  tive Hawaiians and Other Pacific Islanders, the figure was 53.09 percent. These dis-
                                                                  parities are all large, adverse, and statistically significant.
                                                                     Another way to look at these disparities is by comparing sales and receipts per
                                                                  firm. In Table 6, for example, average per firm sales and receipts for non-minority
                                                                  male-owned employer firms was $3.15 million.30 In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $1.03 million. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned employer firms, African American-owned
                                                                       employer firms received just 33 cents.
                                                                     • For Hispanic-owned employer firms, average per firm sales and receipts was
                                                                       $1.31 million. In other words, for every dollar of sales and receipts earned by
                                                                       non-minority male-owned employer firms, Hispanic-owned employer firms re-
                                                                       ceived just 42 cents.
                                                                     • For Asian-owned employer firms, average per firm sales and receipts was $1.47
                                                                       million. In other words, for every dollar of sales and receipts earned by non-
                                                                       minority male-owned employer firms, Asian-owned employer firms received just
                                                                       47 cents.
                                                                     • For American Indian- and Alaska Native-owned employer firms, average per
                                                                       firm sales and receipts was $1.55 million. In other words, for every dollar of
                                                                       sales and receipts earned by non-minority male-owned employer firms, Amer-
                                                                       ican Indian- and Alaska Native-owned employer firms received just 49 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employer firms, aver-
                                                                       age per firm sales and receipts was $1.23 million. In other words, for every dol-
                                                                       lar of sales and receipts earned by non-minority male-owned employer firms,
                                                                       Native Hawaiian- and Other Pacific Islander-owned employer firms received
                                                                       just 39 cents.
                                                                     • For women-owned employer firms, average per firm sales and receipts was
                                                                       $1.42 million. In other words, for every dollar of sales and receipts earned by
                                                                       non-minority male-owned employer firms, women-owned employer firms re-
                                                                       ceived just 45 cents.
                                                                     As discussed above, these severe disparities in firm earnings have a direct nega-
                                                                  tive and compounding effect on the employees of minority- and women-owned firms.
                                                                  Table 6, for example, shows that average payroll per employee at non-minority
                                                                  male-owned employer firms in 2017 was $45,555.31 In contrast:
                                                                     • For African American-owned employers, average payroll per employee was just
                                                                       $29,882. In other words, for every $1 in wages earned by employees at non-mi-

                                                                    29 The disparity index is derived by dividing the share of sales and receipts from Panel B col-
                                                                  umn (2) by the share of firms in Panel B column (1) and multiplying the result by 100.
                                                                    30 Per firm sales and receipts is derived by dividing the sales and receipts amount in Panel
                                                                  A column (2) by the number of employer firms in Panel A column (1).
                                                                    31 Average payroll per employee is derived by dividing total payroll in Panel A column (4) by
                                                                  total number of employees in Panel A column (3).




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                                                                         nority male-owned firms, employees at African American-owned firms earned
                                                                         just 66 cents.
                                                                       • For Hispanic-owned employers average payroll per employee was just $31,674.
                                                                         In other words, for every $1 in wages earned by employees at non-minority
                                                                         male-owned firms, employees at Hispanic-owned firms earned just 70 cents.
                                                                       • For Asian-owned employers average payroll per employee was just $34,137. In
                                                                         other words, for every $1 in wages earned by employees at non-minority male-
                                                                         owned firms, employees at Asian-owned firms earned just 75 cents.
                                                                       • For American Indian- and Alaska Native-owned employers average payroll per
                                                                         employee was just $39,756. In other words, for every $1 in wages earned by em-
                                                                         ployees at non-minority male-owned firms, employees at American Indian- and
                                                                         Alaska Native-owned firms earned just 87 cents.
                                                                       • For Native Hawaiian- and Other Pacific Islander-owned employers it was just
                                                                         $35,386. In other words, for every $1 in wages earned by employees at non-mi-
                                                                         nority male-owned firms, employees at Native Hawaiian- and Other Pacific Is-
                                                                         lander-owned firms earned just 78 cents.
                                                                       • For women-owned employers average payroll per employee was just $36,926. In
                                                                         other words, for every $1 in wages earned by employees at non-minority male-
                                                                         owned firms, employees at women-owned firms earned just 81 cents.

                                                                   Table 6. Disparity Ratios from the 2017 Annual Business Survey, United States, All Industries
                                                                                                                                                                                          Sales and
                                                                                                                                                                    Employer              Receipts                         Payroll
                                                                                                                                                                     Firms                 ($000s)        Employees        ($000s)

                                                                                                                                                                         (1)                 (2)             (3)             (4)

                                                                  Panel A. Levels

                                                                  All Firms ...............................................................................          5,474,721          12,689,937,307    62,990,475    2,618,191,164
                                                                  Non-minority male ................................................................                 2,851,098           8,972,454,223    38,973,541    1,775,434,267
                                                                  African American ..................................................................                  124,004             127,850,815     1,208,270       36,105,467
                                                                  Hispanic ...............................................................................             322,076             422,573,589     2,872,550       90,985,526
                                                                  Asian ....................................................................................           555,638             814,806,324     4,649,688      158,725,110
                                                                  Native Hawaiian/Pac. Islander .............................................                            6,847               8,426,209        55,413        1,960,819
                                                                  Am. Indian & Alaska Native ................................................                           24,503              37,992,217       221,193        8,793,842
                                                                  Female ..................................................................................            855,136           1,217,743,211     7,863,653      290,375,358

                                                                  Panel B. Column Percentages

                                                                  All Firms ...............................................................................            100.00%               100.00%       100.00%          100.00%
                                                                  Non-minority male ................................................................                    52.08%                70.71%        61.87%           67.81%
                                                                  African American ..................................................................                    2.27%                 1.01%         1.92%            1.38%
                                                                  Hispanic ...............................................................................               5.88%                 3.33%         4.56%            3.48%
                                                                  Asian ....................................................................................            10.15%                 6.42%         7.38%            6.06%
                                                                  Native Hawaiian/Pac. Islander .............................................                            0.13%                 0.07%         0.09%            0.07%
                                                                  Am. Indian & Alaska Native ................................................                            0.45%                 0.30%         0.35%            0.34%
                                                                  Female ..................................................................................             15.62%                 9.60%        12.48%           11.09%

                                                                  Panel C. Disparity Ratios                                                                                                 (2) vs. (1)   (3) vs. (1)      (4) vs. (1)

                                                                  Non-minority male ........................................................................................                  135.77        118.81           130.21
                                                                  African American ..........................................................................................                  44.48         84.69            60.88
                                                                  Hispanic ........................................................................................................            56.60         77.52            59.07
                                                                  Asian .............................................................................................................          63.27         72.73            59.73
                                                                  Native Hawaiian/Pac. Islander .....................................................................                          53.09         70.34            59.88
                                                                  Am. Indian & Alaska Native .........................................................................                         66.89         78.46            75.04
                                                                  Female ...........................................................................................................           61.44         79.92            71.00
                                                                     Source: Authors calculations from the 2017 ABS. Notes: (1) Figures are rounded. Rounding was performed subsequent to any mathematical
                                                                  calculations; (2) Excludes publicly owned, foreign-owned, and not-for-profit firms; (3) Totals for ‘‘All Firms’’ includes firms that were equally
                                                                  nonminority-minority owned; (4) Statistically significant; disparity indexes are italicized; (5) ‘‘n/a’’ indicates that data were not disclosed due
                                                                  to confidentiality or other publication restrictions.

                                                                         b. Results for the Construction Sector
                                                                    Table 7 provides comparable 2017 information for the construction sector, which,
                                                                  along with architecture, engineering, and related professional services, is a major
                                                                  recipient of Federal surface and aviation transportation funding.
                                                                    Although non-minority males owned 68.52 percent of all employer firms in the
                                                                  construction sector, they earned 77.92 percent of all sales and receipts. In contrast:




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                                                                     • Although African Americans owned 1.17 percent of all employer firms in the
                                                                       U.S. in 2017, they earned only 0.72 percent of all sales and receipts. This yields
                                                                       a disparity index of 61.05.
                                                                     • Although Hispanics owned 7.16 percent of all employer firms in the U.S. in
                                                                       2017, they earned only 4.1 percent of all sales and receipts. This yields a dis-
                                                                       parity index of 57.26.
                                                                     • Although Asians owned 2.02 percent of all employer firms in the U.S. in 2017,
                                                                       they earned only 1.37 percent of all sales and receipts. This yields a disparity
                                                                       index of 67.73.
                                                                     • Although Native Hawaiians and Other Pacific Islanders owned 0.16 percent of
                                                                       all employer firms in the U.S. in 2017, they earned only 0.1 percent of all sales
                                                                       and receipts. This yields a disparity index of 62.97.
                                                                     • Although American Indians and Alaska Natives owned 0.69 percent of all em-
                                                                       ployer firms in the U.S. in 2017, they earned only 0.52 percent of all sales and
                                                                       receipts. This yields a disparity index of 76.15.
                                                                     As a group, women fared much better in construction in 2017 compared to other
                                                                  disadvantaged groups. Women owned 7.15 percent of all employer firms in the U.S.
                                                                  in 2017, and they earned an equivalent share of sales and receipts—7.26 percent,
                                                                  yielding no adverse disparity index. But remember, this new ABS data does not in-
                                                                  clude emerging firms that have yet grown sufficiently large to hire employees.
                                                                     When we consider per firm sales and receipts for employer firms in 2017, we see
                                                                  that non-minority male-owned firms averaged $2.51 million. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was 1.35 million. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned employer firms, African American-owned
                                                                       employer firms received just 54 cents.
                                                                     • For Hispanic-owned employer firms, average per firm sales and receipts was
                                                                       1.26 million. In other words, for every dollar of sales and receipts earned by
                                                                       non-minority male-owned employer firms, Hispanic-owned employer firms re-
                                                                       ceived just 50 cents.
                                                                     • For Asian-owned employer firms, average per firm sales and receipts was 1.49
                                                                       million. In other words, for every dollar of sales and receipts earned by non-
                                                                       minority male-owned employer firms, Asian-owned employer firms received just
                                                                       60 cents.
                                                                     • For American Indian- and Alaska Native-owned employer firms, average per
                                                                       firm sales and receipts was 1.68 million. In other words, for every dollar of sales
                                                                       and receipts earned by non-minority male-owned employer firms, American
                                                                       Indian- and Alaska Native-owned employer firms received just 67 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employer firms, aver-
                                                                       age per firm sales and receipts was 1.39 million. In other words, for every dollar
                                                                       of sales and receipts earned by non-minority male-owned employer firms, Na-
                                                                       tive Hawaiian- and Other Pacific Islander-owned employer firms received just
                                                                       55 cents.
                                                                     • For women-owned employer firms, average per firm sales and receipts was 2.24
                                                                       million. In other words, for every dollar of sales and receipts earned by non-
                                                                       minority male-owned employer firms, women-owned employer firms received
                                                                       just 89 cents.
                                                                     Considering the employees of these minority- and women-owned firms, Table 7
                                                                  shows that average payroll per employee at non-minority male-owned employer
                                                                  firms the construction sector in 2017 was $54,984. In contrast:
                                                                     • For African American-owned employers, average payroll per employee was just
                                                                       $45,869. In other words, for every $1 in wages earned by employees at non-mi-
                                                                       nority male-owned firms, employees at African American-owned firms earned
                                                                       just 83 cents.
                                                                     • For Hispanic-owned employers average payroll per employee was just $41,881.
                                                                       In other words, for every $1 in wages earned by employees at non-minority
                                                                       male-owned firms, employees at Hispanic-owned firms earned just 76 cents.
                                                                     • For Asian-owned employers average payroll per employee was just $50,307. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at Asian-owned firms earned 91 cents.
                                                                     • For American Indian- and Alaska Native-owned employers average payroll per
                                                                       employee was just $51,723. In other words, for every $1 in wages earned by em-
                                                                       ployees at non-minority male-owned firms, employees at American Indian- and
                                                                       Alaska Native-owned firms earned 94 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employers it was just
                                                                       $46,120 male-owned firms, employees at Native Hawaiian- and Other Pacific Is-
                                                                       lander-owned firms earned just 84 cents.




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                                                                       • For women-owned employers average payroll per employee was just $53,318. In
                                                                         other words, for every $1 in wages earned by employees at non-minority male-
                                                                         owned firms, employees at women-owned firms earned 97 cents.

                                                                   Table 7. Disparity Ratios from the 2017 Annual Business Survey, United States, Construction
                                                                                                                                                                                         Sales and
                                                                                                                                                                    Employer             Receipts                       Payroll
                                                                                                                                                                     Firms                ($000s)        Employees      ($000s)

                                                                                                                                                                         (3)                (4)             (5)           (6)

                                                                  Panel A. Levels

                                                                  All Firms ...............................................................................             700,453         1,544,490,456     6,120,046    324,999,296
                                                                  Non-minority male ................................................................                    479,971         1,203,446,334     4,504,618    247,682,903
                                                                  African American ..................................................................                     8,218            11,062,034        54,093      2,481,191
                                                                  Hispanic ...............................................................................               50,187            63,362,420       327,799     13,728,565
                                                                  Asian ....................................................................................             14,169            21,160,223        82,746      4,162,689
                                                                  Native Hawaiian/Pac. Islander .............................................                             1,093             1,517,730         7,795        359,508
                                                                  Am. Indian & Alaska Native ................................................                             4,821             8,095,145        35,355      1,828,684
                                                                  Female ..................................................................................              50,075           112,156,157       508,141     27,092,808

                                                                  Panel B. Column Percentages

                                                                  All Firms ...............................................................................            100.00%              100.00%       100.00%         100.00%
                                                                  Non-minority male ................................................................                    68.52%               77.92%        73.60%          76.21%
                                                                  African American ..................................................................                    1.17%                0.72%         0.88%           0.76%
                                                                  Hispanic ...............................................................................               7.16%                4.10%         5.36%           4.22%
                                                                  Asian ....................................................................................             2.02%                1.37%         1.35%           1.28%
                                                                  Native Hawaiian/Pac. Islander .............................................                            0.16%                0.10%         0.13%           0.11%
                                                                  Am. Indian & Alaska Native ................................................                            0.69%                0.52%         0.58%           0.56%
                                                                  Female ..................................................................................              7.15%                7.26%         8.30%           8.34%

                                                                  Panel C. Disparity Ratios                                                                                                (2) vs. (1)   (3) vs. (1)    (4) vs. (1)

                                                                  Non-minority male ........................................................................................                 113.71        107.42         111.22
                                                                  African American ..........................................................................................                 61.05         75.34          65.07
                                                                  Hispanic ........................................................................................................           57.26         74.76          58.96
                                                                  Asian .............................................................................................................         67.73         66.84          63.32
                                                                  Native Hawaiian/Pac. Islander .....................................................................                         62.97         81.62          70.89
                                                                  Am. Indian & Alaska Native .........................................................................                        76.15         83.93          81.75
                                                                  Female ...........................................................................................................          101.58        116.14         116.61
                                                                       Source and Notes: See Table 6.

                                                                         c. Results for the Professional, Scientific, and Technical Sector
                                                                    Table 8 provides comparable 2017 information for the professional, scientific, and
                                                                  technical sector (which includes architecture, engineering, and related professional
                                                                  services). This sector, along with construction, is a major recipient of Federal sur-
                                                                  face and aviation transportation funding.
                                                                    Although non-minority males owned 56.31 percent of all employer firms in the
                                                                  construction sector, they earned 66.39 percent of all sales and receipts. In contrast:
                                                                    • Although African Americans owned 2.06 percent of all employer firms in the
                                                                       U.S. in 2017, they earned only 1.6 percent of all sales and receipts. This yields
                                                                       a disparity index of 77.65.
                                                                    • Although Hispanics owned 4.32 percent of all employer firms in the U.S. in
                                                                       2017, they earned only 3.2 percent of all sales and receipts. This yields a dis-
                                                                       parity index of 74.09.
                                                                    • Although Asians owned 7.67 percent of all employer firms in the U.S. in 2017,
                                                                       they earned only 8.84 percent of all sales and receipts. This yields a disparity
                                                                       index of 115.31.
                                                                    • Although Native Hawaiians and Other Pacific Islanders owned 0.12 percent of
                                                                       all employer firms in the U.S. in 2017, they earned only 0.1 percent of all sales
                                                                       and receipts. This yields a disparity index of 84.87.
                                                                    • Although American Indians and Alaska Natives owned 0.52 percent of all em-
                                                                       ployer firms in the U.S. in 2017, they earned only 0.52 percent of all sales and
                                                                       receipts. This yields a disparity index of 99.76.




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                                                                     • Although women owned 19.1 percent of all employer firms in the U.S. in 2017,
                                                                       they earned only 12.4 percent of all sales and receipts. This yields a disparity
                                                                       index of 64.91.
                                                                     When we consider per firm sales and receipts for employer firms, we see that non-
                                                                  minority male-owned firms averaged $1.37 million in 2017. In contrast:
                                                                     • For African American-owned employer firms, average per firm sales and re-
                                                                       ceipts was $902 thousand. In other words, for every dollar of sales and receipts
                                                                       earned by non-minority male-owned employer firms, African American-owned
                                                                       employer firms received just 66 cents.
                                                                     • For Hispanic-owned employer firms, average per firm sales and receipts was
                                                                       $861 thousand. In other words, for every dollar of sales and receipts earned by
                                                                       non-minority male-owned employer firms, Hispanic-owned employer firms re-
                                                                       ceived just 63 cents.
                                                                     • For Asian-owned employer firms, average per firm sales and receipts was $1.34
                                                                       million. In other words, for every dollar of sales and receipts earned by non-
                                                                       minority male-owned employer firms, Asian-owned employer firms received just
                                                                       98 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employer firms, aver-
                                                                       age per firm sales and receipts was $986 thousand. In other words, for every
                                                                       dollar of sales and receipts earned by non-minority male-owned employer firms,
                                                                       Native Hawaiian- and Other Pacific Islander-owned employer firms received
                                                                       just 72 cents.
                                                                     • For American Indian- and Alaska Native-owned employer firms, average per
                                                                       firm sales and receipts was $1.16 million. In other words, for every dollar of
                                                                       sales and receipts earned by non-minority male-owned employer firms, Amer-
                                                                       ican Indian- and Alaska Native-owned employer firms received just 85 cents.
                                                                     • For women-owned employer firms, average per firm sales and receipts was $754
                                                                       thousand. In other words, for every dollar of sales and receipts earned by non-
                                                                       minority male-owned employer firms, women-owned employer firms received
                                                                       just 55 cents.
                                                                     Considering the employees of these minority- and women-owned firms, Table 8
                                                                  shows that average payroll per employee at non-minority male-owned employer
                                                                  firms the professional services sector in 2017 was $70,546. In contrast:
                                                                     • For African American-owned employers, average payroll per employee was just
                                                                       $59,033. In other words, for every $1 in wages earned by employees at non-mi-
                                                                       nority male-owned firms, employees at African American-owned firms earned
                                                                       just 84 cents.
                                                                     • For Hispanic-owned employers average payroll per employee was just $56,567.
                                                                       In other words, for every $1 in wages earned by employees at non-minority
                                                                       male-owned firms, employees at Hispanic-owned firms earned just 80 cents.
                                                                     • For Asian-owned employers average payroll per employee was $75,179—some-
                                                                       what higher than non-minority male-owned employers. Thus, for every $1 in
                                                                       wages earned by employees at non-minority male-owned firms, employees at
                                                                       Asian-owned firms earned $1.07 cents, slightly better than parity.
                                                                     • For American Indian- and Alaska Native-owned employers average payroll per
                                                                       employee was just $60,884. In other words, for every $1 in wages earned by em-
                                                                       ployees at non-minority male-owned firms, employees at American Indian- and
                                                                       Alaska Native-owned firms earned 86 cents.
                                                                     • For Native Hawaiian- and Other Pacific Islander-owned employers it was just
                                                                       $63,009 male-owned firms, employees at Native Hawaiian- and Other Pacific Is-
                                                                       lander-owned firms earned just 89 cents.
                                                                     • For women-owned employers average payroll per employee was just $55,606. In
                                                                       other words, for every $1 in wages earned by employees at non-minority male-
                                                                       owned firms, employees at women-owned firms earned 79 cents.




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                                                                                 Table 8. Disparity Ratios from the 2017 Annual Business Survey, United States,
                                                                                                 Professional, Scientific, and Technical Services
                                                                                                                                                                                         Sales and
                                                                                                                                                                    Employer             Receipts                       Payroll
                                                                                                                                                                     Firms                ($000s)        Employees      ($000s)

                                                                                                                                                                         (3)                (4)             (5)           (6)

                                                                  Panel A. Levels

                                                                  All Firms ...............................................................................             794,235          922,698,077      5,339,009    362,594,623
                                                                  Non-minority male ................................................................                    447,254          612,610,502      3,281,827    231,520,629
                                                                  African American ..................................................................                    16,392           14,787,229         96,267      5,682,935
                                                                  Hispanic ...............................................................................               34,292           29,514,634        185,395     10,487,211
                                                                  Asian ....................................................................................             60,907           81,592,941        432,567     32,520,040
                                                                  Native Hawaiian/Pac. Islander .............................................                               971              957,403          6,118        385,489
                                                                  Am. Indian & Alaska Native ................................................                             4,142            4,800,227         29,953      1,823,661
                                                                  Female ..................................................................................             151,694          114,396,323        751,207     41,771,294

                                                                  Panel B. Column Percentages

                                                                  All Firms ...............................................................................            100.00%              100.00%       100.00%         100.00%
                                                                  Non-minority male ................................................................                    56.31%               66.39%        61.47%          63.85%
                                                                  African American ..................................................................                    2.06%                1.60%         1.80%           1.57%
                                                                  Hispanic ...............................................................................               4.32%                3.20%         3.47%           2.89%
                                                                  Asian ....................................................................................             7.67%                8.84%         8.10%           8.97%
                                                                  Native Hawaiian/Pac. Islander .............................................                            0.12%                0.10%         0.11%           0.11%
                                                                  Am. Indian & Alaska Native ................................................                            0.52%                0.52%         0.56%           0.50%
                                                                  Female ..................................................................................             19.10%               12.40%        14.07%          11.52%

                                                                  Panel C. Disparity Ratios                                                                                                (2) vs. (1)   (3) vs. (1)    (4) vs. (1)

                                                                  Non-minority male ........................................................................................                 117.90        109.16         113.39
                                                                  African American ..........................................................................................                 77.65         87.36          75.94
                                                                  Hispanic ........................................................................................................           74.09         80.43          66.99
                                                                  Asian .............................................................................................................        115.31        105.65         116.95
                                                                  Native Hawaiian/Pac. Islander .....................................................................                          84.87         93.73          86.96
                                                                  Am. Indian & Alaska Native .........................................................................                         99.76        107.58          96.44
                                                                  Female ...........................................................................................................          64.91         73.67          60.32
                                                                       Source and Notes: See Table 6.

                                                                  3. State-Level Results from 2002–2017
                                                                     The state-level disparities observed in the 2017 ABS are documented below in Ap-
                                                                  pendix A, Tables A.1 through A.18. Data from the 2012 SBO is presented in Appen-
                                                                  dix B, Tables B.1 through B.18. Data from the 2007 SBO is presented in Appendix
                                                                  C, Tables C.1 through C.18. Data from the 2002 SBO is presented in Appendix D,
                                                                  Tables D.1 through D.18.
                                                                     The most noticeable aspect of the statistics presented in Tables A.1 through D.18
                                                                  below is how many of the disparity indexes are large, adverse, and statistically sig-
                                                                  nificant.32 This is true for African Americans, Hispanics, Asians and Pacific Island-
                                                                  ers, American Indians and Alaska Natives, and non-minority women. It is true in
                                                                  the construction sector, it is true in the professional services sector, and it is true
                                                                  when considering all industries combined. It is true in all 50 states and the District
                                                                  of Columbia. While there is certainly variation by race, sex, industry, geography,
                                                                  and time, the similarities vastly outweigh the differences. Table 9 provides a high-
                                                                  level summary of the findings of disparity from the 2007 SBO in Tables A.1 through
                                                                  A.18.



                                                                    32 I have measured statistical significance here using the ‘‘two standard deviation’’ or ‘‘5%’’

                                                                  level of significance typically used in disparate impact litigation in employment and related
                                                                  areas.




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                                                                  Table 9. Prevalence of Disparities in the 2017 Annual Business Survey and the 2012, 2007 &
                                                                                                2002 Survey of Business Owners
                                                                                                                                                                                                           Fraction of
                                                                                                                                                                          Fraction of      Fraction of       Disparity
                                                                                                                          Number of                                         Disparity        Disparity   Indexes that
                                                                                                                            Disparity                                   Indexes Less     Indexes Less              are
                                                                                                                          Indexes in                                   than or Equal    than or Equal     Statistically
                                                                       Year                  Industry                          Table        Race/Sex Group                      to 80          to 100      Significant

                                                                  2017 ....   All Industries ..........................          48     AfrAmer ..................             98%             100%              88%
                                                                  2012 ....   All Industries ..........................          96     AfrAmer ..................             97%              98%              92%
                                                                  2007 ....   All Industries ..........................          96     AfrAmer ..................             93%              97%              90%
                                                                  2002 ....   All Industries ..........................         100     AfrAmer ..................             98%             100%              98%

                                                                  2017 ....   Construction ...........................            39    AfrAmer ..................             77%              82%              46%
                                                                  2012 ....   Construction ...........................            84    AfrAmer ..................             88%              93%              80%
                                                                  2007 ....   Construction ...........................            84    AfrAmer ..................             85%              90%              82%
                                                                  2002 ....   Construction ...........................            69    AfrAmer ..................             86%              88%              72%

                                                                  2017 ....   Professional Services ..............                41    AfrAmer ..................             73%              80%              49%
                                                                  2012 ....   Professional Services ..............                92    AfrAmer ..................             78%              90%              70%
                                                                  2007 ....   Professional Services ..............                92    AfrAmer ..................             76%              88%              73%
                                                                  2002 ....   Professional Services ..............                86    AfrAmer ..................             94%              98%              80%

                                                                  2017 ....   All Industries ..........................          52     Hispanic .................             87%              94%             79%
                                                                  2012 ....   All Industries ..........................         101     Hispanic .................             87%              94%             84%
                                                                  2007 ....   All Industries ..........................         101     Hispanic .................             82%              90%             86%
                                                                  2002 ....   All Industries ..........................         102     Hispanic .................            100%             100%            100%

                                                                  2017 ....   Construction ...........................            49    Hispanic .................             86%              92%              61%
                                                                  2012 ....   Construction ...........................            95    Hispanic .................             89%              96%              79%
                                                                  2007 ....   Construction ...........................            95    Hispanic .................             87%              93%              78%
                                                                  2002 ....   Construction ...........................            85    Hispanic .................             88%              91%              81%

                                                                  2017 ....   Professional Services ..............                48    Hispanic .................             42%              65%              29%
                                                                  2012 ....   Professional Services ..............                97    Hispanic .................             63%              79%              54%
                                                                  2007 ....   Professional Services ..............                97    Hispanic .................             65%              75%              57%
                                                                  2002 ....   Professional Services ..............                84    Hispanic .................             93%              94%              74%

                                                                  2017 ....   All Industries ..........................          52     Asian ......................           98%              98%             96%
                                                                  2012 ....   All Industries ..........................         104     Asian ......................           68%              89%             73%
                                                                  2007 ....   All Industries ..........................         104     Asian ......................           75%              96%             80%
                                                                  2002 ....   All Industries ..........................         102     Asian ......................          100%             100%            100%

                                                                  2017 ....   Construction ...........................            40    Asian ......................           72%              75%              38%
                                                                  2012 ....   Construction ...........................            84    Asian ......................           70%              75%              57%
                                                                  2007 ....   Construction ...........................            84    Asian ......................           71%              77%              54%
                                                                  2002 ....   Construction ...........................            58    Asian ......................           74%              90%              53%

                                                                  2017 ....   Professional Services ..............               49     Asian ......................           14%              29%              16%
                                                                  2012 ....   Professional Services ..............              100     Asian ......................           21%              33%              34%
                                                                  2007 ....   Professional Services ..............              100     Asian ......................           15%              28%              32%
                                                                  2002 ....   Professional Services ..............               88     Asian ......................           64%              77%              51%

                                                                  2017 ....   All Industries ..........................           36    NHPI .......................           81%              86%              58%
                                                                  2012 ....   All Industries ..........................           71    NHPI .......................           86%              86%              70%
                                                                  2007 ....   All Industries ..........................           71    NHPI .......................           86%              93%              72%
                                                                  2002 ....   All Industries ..........................           48    NHPI .......................          100%             100%              96%

                                                                  2017 ....   Construction ...........................            11    NHPI .......................           73%              73%              45%
                                                                  2012 ....   Construction ...........................            33    NHPI .......................           76%              79%              74%
                                                                  2007 ....   Construction ...........................            33    NHPI .......................           73%              79%              58%
                                                                  2002 ....   Construction ...........................            10    NHPI .......................           70%              80%              50%

                                                                  2017 ....   Professional Services ..............                13    NHPI .......................           69%              77%              46%
                                                                  2012 ....   Professional Services ..............                31    NHPI .......................           68%              75%              73%
                                                                  2007 ....   Professional Services ..............                31    NHPI .......................           52%              58%              39%
                                                                  2002 ....   Professional Services ..............                13    NHPI .......................           92%              92%              85%




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                                                                  Table 9. Prevalence of Disparities in the 2017 Annual Business Survey and the 2012, 2007 &
                                                                                          2002 Survey of Business Owners—Continued
                                                                                                                                                                                                           Fraction of
                                                                                                                                                                          Fraction of      Fraction of       Disparity
                                                                                                                          Number of                                         Disparity        Disparity   Indexes that
                                                                                                                            Disparity                                   Indexes Less     Indexes Less              are
                                                                                                                          Indexes in                                   than or Equal    than or Equal     Statistically
                                                                       Year                  Industry                          Table        Race/Sex Group                      to 80          to 100      Significant

                                                                  2017 ....   All Industries ..........................           49    AIAN .......................           76%              88%              55%
                                                                  2012 ....   All Industries ..........................           94    AIAN .......................           89%              97%              82%
                                                                  2007 ....   All Industries ..........................           94    AIAN .......................           91%              98%              82%
                                                                  2002 ....   All Industries ..........................           96    AIAN .......................           99%              99%              98%

                                                                  2017 ....   Construction ...........................            39    AIAN .......................           59%              72%              23%
                                                                  2012 ....   Construction ...........................            74    AIAN .......................           72%              81%              53%
                                                                  2007 ....   Construction ...........................            74    AIAN .......................           73%              85%              54%
                                                                  2002 ....   Construction ...........................            74    AIAN .......................           81%              91%              64%

                                                                  2017 ....   Professional Services ..............                33    AIAN .......................           52%              67%              27%
                                                                  2012 ....   Professional Services ..............                79    AIAN .......................           79%              92%              51%
                                                                  2007 ....   Professional Services ..............                79    AIAN .......................           68%              80%              43%
                                                                  2002 ....   Professional Services ..............                71    AIAN .......................           90%              92%              76%

                                                                  2017 ....   All Industries ..........................          52     NMF ........................          100%             100%             98%
                                                                  2012 ....   All Industries ..........................         104     NMF ........................           98%              99%             98%
                                                                  2007 ....   All Industries ..........................         104     NMF ........................           98%             100%            100%
                                                                  2002 ....   All Industries ..........................         104     NMF ........................          100%             100%            100%

                                                                  2017 ....   Construction ...........................           52     NMF ........................           21%              54%               2%
                                                                  2012 ....   Construction ...........................          103     NMF ........................           30%              56%              16%
                                                                  2007 ....   Construction ...........................          103     NMF ........................           36%              67%              23%
                                                                  2002 ....   Construction ...........................           42     NMF ........................           71%              86%              50%

                                                                  2017 ....   Professional Services ..............               52     NMF ........................           92%             100%              83%
                                                                  2012 ....   Professional Services ..............              103     NMF ........................           97%             100%              94%
                                                                  2007 ....   Professional Services ..............              103     NMF ........................           99%              99%              94%
                                                                  2002 ....   Professional Services ..............               54     NMF ........................          100%             100%              98%
                                                                    Source: Author’s calculations from the 2017 ABS, and the 2012, 2007 and 2002 SBO. Note: ‘‘NHPI’’ stands for Native Hawaiians and Other
                                                                  Pacific Islanders, ‘‘AIAN’’ stands for American Indians and Alaska Natives, and ‘‘NMF’’ stands for non-minority female.

                                                                        a. Conclusions from the Survey of Business Owners/Annual Business Survey
                                                                             Data
                                                                    While the exact proportions vary, large and statistically significant disparities are
                                                                  observed in the U.S. as a whole, in all 50 states and the District of Columbia, for
                                                                  all minority groups—African Americans, Hispanics, Asians and Pacific Islanders,
                                                                  and American Indians and Alaska Natives—as well as for non-minority women.
                                                                  These disparities are found in the Construction sector, the Professional, Scientific
                                                                  and Technical Services Sector (which includes Architecture, Engineering and related
                                                                  industries), and in the economy as a whole.

                                                                       D. THERE IS STRONG EVIDENCE OF DISPARITIES AND DISCRIMINATION IN MINORITY
                                                                                  AND FEMALE BUSINESS FORMATION RATES AND EARNINGS

                                                                    It is fair to ask whether the disparities documented in most disparity studies and
                                                                  in the SBO and ABS data result primarily from discrimination, or whether they re-
                                                                  sult from other, potentially non-discriminatory, factors.
                                                                    This question can be tested directly using the American Community Survey 5-year
                                                                  Public Use Microdata Sample (ACS PUMS), which allows us to examine business
                                                                  outcomes for different race, ethnic, and gender groups in great detail while holding
                                                                  constant a wide variety of other demographic and economic variables.




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                                                                                                                  77
                                                                  1. Discrimination Impacting Business Formation
                                                                         a. Methods
                                                                     To assess the extent of discrimination in business formation, I developed three dif-
                                                                  ferent statistical regression models.33 In ‘‘Model A’’, the only independent variables
                                                                  included in the analysis are indicators for race and sex and survey year. This model
                                                                  identifies the raw differences in business formation rates between minorities,
                                                                  women, and non-minority males, holding only time constant.
                                                                     Next, ‘‘Model B’’ adds to the regression equation several independent variables
                                                                  that are indicators of qualifications and capacity, including schooling, state of resi-
                                                                  dence, and age.34 This allows us to compare individuals that are similarly situated
                                                                  in terms of their educational attainment, their geographic location, and their labor
                                                                  market experience.
                                                                     Finally, ‘‘Model C’’ adds to the regression equation a large number of independent
                                                                  variables that have been shown to be related to the propensity to become a business
                                                                  owner. These include proxies for individual financial assets (interest and dividend
                                                                  income, home ownership status, and home property value), family structure (spouse
                                                                  present in the household, number of children in the household), mobility (lived in
                                                                  the same house last year), immigration status (foreign born, years in the U.S.,
                                                                  English proficiency), military status (veteran), and local macroeconomic conditions
                                                                  by state (general population level, unemployment rate, number of full-time govern-
                                                                  ment employees, per capita personal income).35
                                                                     Taken together, these three models allow us to test whether discrimination is the
                                                                  primary explanation for observed business disparities for minorities and women. If
                                                                  disparity indexes remain adverse, large, and statistically significant throughout
                                                                  Models A, B and C, then the answer is ‘‘Yes.’’
                                                                         b. Data
                                                                     The data used for the analyses in this section are the most recent 2014–2018
                                                                  American Community Survey 5-year Public Use Microdata Sample (ACS), which al-
                                                                  lows us to examine business outcomes for different race, ethnic, and gender groups
                                                                  in great detail while holding constant a wide variety of other demographic and eco-
                                                                  nomic variables.36
                                                                     The analyses undertaken in this section require individual-level data (i.e.,
                                                                  ‘‘microdata’’) with relevant information on business ownership status and other key
                                                                  socioeconomic characteristics. The American Community Survey is an ongoing an-
                                                                  nual survey covering the same type of information that was formerly collected in
                                                                  the decennial census ‘‘long form.’’ The ACS is sent to approximately 3.5 million ad-
                                                                  dresses annually, including housing units in all counties in the 50 states and the
                                                                  District of Columbia.37 The PUMS file from the ACS contains records for a sub-
                                                                  sample of the full ACS. The data used here are the multi-year estimates combining
                                                                  the 2014 through 2018 ACS PUMS records. The combined file contains over six mil-
                                                                  lion person-level records. The 2014–2018 ACS PUMS provides the full range of pop-
                                                                  ulation and housing information collected in the annual ACS and in the decennial
                                                                  census. Business ownership status is identified in the ACS PUMS through the ‘‘class
                                                                  of worker’’ variable, which distinguishes the unincorporated and incorporated self-
                                                                  employed from others in the labor force. The presence of the class of worker variable
                                                                  allows us to construct a detailed cross-sectional sample of individual business own-
                                                                  ers and their associated earnings. The ACS PUMS universe for all of the analyses
                                                                  presented below includes all prime age (16–64) private sector labor force partici-
                                                                  pants.
                                                                         c. Economy-Wide Findings
                                                                     I estimated Models A, B and C across four different industry groupings in the
                                                                  U.S.: (1) the entire economy, (2) the construction sector, and (3) the Architecture/
                                                                  Engineering sector. These results are reported below in Tables 10–12.

                                                                    33 Regression analysis is a type of statistical analysis that examines the correlation between
                                                                  two variables (‘‘regression’’) or three or more variables (‘‘multiple regression’’ or ‘‘multivariate
                                                                  regression’’) in a mathematical model by determining the line of best fit through a series of data
                                                                  points. In simpler terms, regression analysis is a statistical technique allowing the comparison
                                                                  between certain business outcomes, such as business formation, business earnings, or loan deni-
                                                                  als, and minority or female status, while holding other, potentially non-discriminatory factors,
                                                                  such as geographic location, industry affiliation, education, age, or balance sheets, constant.
                                                                    34 A person’s age is a widely used proxy for their labor market experience and enters the re-
                                                                  gression equation quadratically.
                                                                    35 Interest and dividend income and per capita personal income are included in the model in
                                                                  their logarithmic forms.
                                                                    36 These ACS data were released in January 2020. See U.S. Census Bureau (2020d).
                                                                    37 U.S. Census Bureau (2013).




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                                                                                                                  78
                                                                     For the economy as a whole, the results are presented in Table 10. Model A iden-
                                                                  tifies large, adverse, and statistically significant disparities in business formation
                                                                  rates in 2014–2018 for all minority groups and for women. The results for Model
                                                                  A show:
                                                                     • For African Americans, the observed self-employment rate is 5.7 percent and
                                                                       the model predicts that it would be 6.7 percentage points higher—12.5 per-
                                                                       cent—if African Americans faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 46.
                                                                     • For Hispanics, the observed self-employment rate is 9.2 percent and the model
                                                                       predicts that it would be 3.8 percentage points higher—13 percent—if Hispanics
                                                                       faced the same market outcomes as non-minority males. This yields a disparity
                                                                       index of 70.9.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 10 per-
                                                                       cent and the model predicts that it would be 3 percentage points higher—13
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 76.8.
                                                                     • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 8.7 percent and the model predicts that it would be 3.7 percentage points
                                                                       higher—12.4 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 70.3.
                                                                     • For minorities as a group, the observed self-employment rate is 8.3 percent and
                                                                       the model predicts that it would be 4.8 percentage points higher—13.1 per-
                                                                       cent—if minorities as a group faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 63.2.
                                                                     • For non-minority females, the observed self-employment rate is 9 percent and
                                                                       the model predicts that it would be 4 percentage points higher—13 percent—
                                                                       if non-minority females faced the same market outcomes as non-minority males.
                                                                       This yields a disparity index of 69.1.
                                                                     For minorities and women as a group, the observed self-employment rate is 8.6
                                                                  percent and the model predicts that it would be 4.9 percentage points higher—13.4
                                                                  percent—if minorities and women as a group faced the same market outcomes as
                                                                  non-minority males. This yields a disparity index of 63.7.Despite the addition of im-
                                                                  portant qualifications and capacity variables, the results for Model B show that, for
                                                                  the economy as a whole, disparities in business formation rates remain large, ad-
                                                                  verse, and statistically significant even when we compare individuals that are simi-
                                                                  larly situated in terms of their educational attainment, their geographic location,
                                                                  and their labor market experience. Specifically, the results for Model B show:
                                                                     • For African Americans, the observed self-employment rate is 5.7 percent and
                                                                       the model predicts that it would be 5.9 percentage points higher—11.6 per-
                                                                       cent—if African Americans faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 49.5.
                                                                     • For Hispanics, the observed self-employment rate is 9.2 percent and the model
                                                                       predicts that it would be 3.3 percentage points higher—12.5 percent—if His-
                                                                       panics faced the same market outcomes as non-minority males. This yields a
                                                                       disparity index of 73.9.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 10 per-
                                                                       cent and the model predicts that it would be 3.2 percentage points higher—13.1
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 75.9.
                                                                     • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 8.7 percent and the model predicts that it would be 3.5 percentage points
                                                                       higher—12.2 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 71.4.
                                                                     • For minorities as a group, the observed self-employment rate is 9 percent and
                                                                       the model predicts that it would be 3.6 percentage points higher—12.5 per-
                                                                       cent—if minorities as a group faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 71.6.
                                                                     • For non-minority females, the observed self-employment rate is 8.3 percent and
                                                                       the model predicts that it would be 4.3 percentage points higher—12.6 per-
                                                                       cent—if non-minority females faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 65.7.
                                                                     • For minorities and women as a group, the observed self-employment rate is 8.6
                                                                       percent and the model predicts that it would be 4.3 percentage points higher—
                                                                       12.9 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 66.5.
                                                                     In Model C, numerous additional variables are included that measure individual
                                                                  financial assets, family structure, mobility, immigration status, military status, and




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                                                                  local macroeconomic conditions. Despite the inclusion of all these additional explan-
                                                                  atory variables, the results still show that disparities in business formation rates
                                                                  remain large, adverse, and statistically significant when we compare individuals
                                                                  who are also similarly situated in terms of these additional measures. The specific
                                                                  results for Model C show:
                                                                    • For African Americans, the observed self-employment rate is 5.7 percent and
                                                                       the model predicts that it would be 5.4 percentage points higher—11.2 per-
                                                                       cent—if African Americans faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 51.5.
                                                                    • For Hispanics, the observed self-employment rate is 9.2 percent and the model
                                                                       predicts that it would be 4.3 percentage points higher—13.5 percent—if His-
                                                                       panics faced the same market outcomes as non-minority males. This yields a
                                                                       disparity index of 68.4.
                                                                    • For Asian and Pacific Islanders, the observed self-employment rate is 10 per-
                                                                       cent and the model predicts that it would be 5 percentage points higher—14.9
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 66.7.
                                                                    • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 8.7 percent and the model predicts that it would be 3.2 percentage points
                                                                       higher—11.9 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 73.3.
                                                                    • For minorities as a group, the observed self-employment rate is 9 percent and
                                                                       the model predicts that it would be 3.5 percentage points higher—12.4 per-
                                                                       cent—if minorities as a group faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 72.1.
                                                                    • For non-minority females, the observed self-employment rate is 8.3 percent and
                                                                       the model predicts that it would be 5.1 percentage points higher—13.4 per-
                                                                       cent—if non-minority females faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 61.9.
                                                                    • For minorities and women as a group, the observed self-employment rate is 8.6
                                                                       percent and the model predicts that it would be 4.5 percentage points higher—
                                                                       13.1 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 65.6.

                                                                       Table 10. Actual and Potential Minority and Female Business Formation Rates, 2014–2018,
                                                                                                              All Industries
                                                                                                                                                                                                         Current    Expected
                                                                                                                                                                                                         Business    Business
                                                                                                                                                                                                        Formation   Formation
                                                                                                                                                                                                           Rate        Rate     Disparity
                                                                                                                                                                                                           (%)         (%)        Index

                                                                                                                         Race, Location                                                                    (1)         (2)         (3)

                                                                  Regression Model A

                                                                  African American ..........................................................................................................                5.74       12.48     45.99
                                                                  Hispanic ........................................................................................................................          9.21       12.99     70.90
                                                                  Asian and Pacific Islander ...........................................................................................                     9.96       12.97     76.79
                                                                  American Indian and Alaska Native .............................................................................                            8.70       12.38     70.27
                                                                  Two or More Races .......................................................................................................                  8.87       12.66     70.06
                                                                  Minority .........................................................................................................................         8.27       13.08     63.23
                                                                  Non-minority female .....................................................................................................                  8.95       12.96     69.06
                                                                  DBE ...............................................................................................................................        8.56       13.44     63.69
                                                                  Non-minority male ........................................................................................................                13.09

                                                                  Regression Model B

                                                                  African American ..........................................................................................................                5.74       11.60     49.48
                                                                  Hispanic ........................................................................................................................          9.21       12.46     73.92
                                                                  Asian and Pacific Islander ...........................................................................................                     9.96       13.12     75.91
                                                                  American Indian and Alaska Native .............................................................................                            8.70       12.18     71.43
                                                                  Two or More Races .......................................................................................................                  8.87       11.06     80.20
                                                                  Minority .........................................................................................................................         8.27       12.58     65.74
                                                                  Non-minority female .....................................................................................................                  8.95       12.50     71.60
                                                                  DBE ...............................................................................................................................        8.56       12.87     66.51
                                                                  Non-minority male ........................................................................................................                13.09




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                                                                       Table 10. Actual and Potential Minority and Female Business Formation Rates, 2014–2018,
                                                                                                       All Industries—Continued
                                                                                                                                                                                                         Current    Expected
                                                                                                                                                                                                         Business    Business
                                                                                                                                                                                                        Formation   Formation
                                                                                                                                                                                                           Rate        Rate     Disparity
                                                                                                                                                                                                           (%)         (%)        Index

                                                                                                                         Race, Location                                                                    (1)         (2)         (3)

                                                                  Regression Model C

                                                                  African American ..........................................................................................................                5.74       11.15     51.48
                                                                  Hispanic ........................................................................................................................          9.21       13.46     68.42
                                                                  Asian and Pacific Islander ...........................................................................................                     9.96       14.93     66.71
                                                                  American Indian and Alaska Native .............................................................................                            8.70       11.87     73.29
                                                                  Two or More Races .......................................................................................................                  8.87       11.06     80.20
                                                                  Minority .........................................................................................................................         8.27       13.35     61.95
                                                                  Non-minority female .....................................................................................................                  8.95       12.41     72.12
                                                                  DBE ...............................................................................................................................        8.56       13.05     65.59
                                                                  Non-minority male ........................................................................................................                13.09
                                                                    Source and Notes: Calculations by the author from the 2014–2018 ACS PUMS. Disparity Indexes in italics are statistically significant at a
                                                                  95 percent probability level or better.
                                                                         d. Findings for Construction
                                                                    When the scope of the inquiry is limited to just the construction industries, the
                                                                  results appear in Table 11. When we examine just the construction industry, Model
                                                                  A identifies large, adverse, and statistically significant disparities in business for-
                                                                  mation rates in 2014–2018 for all minority groups and for women. The results for
                                                                  Model A show:
                                                                    • For African Americans, the observed self-employment rate is 17.8 percent and
                                                                      the model predicts that it would be 8.9 percentage points higher—26.6 per-
                                                                      cent—if African Americans faced the same market outcomes as non-minority
                                                                      males. This yields a disparity index of 66.7.
                                                                    • For Hispanics, the observed self-employment rate is 17.9 percent and the model
                                                                      predicts that it would be 8.7 percentage points higher—26.6 percent—if His-
                                                                      panics faced the same market outcomes as non-minority males. This yields a
                                                                      disparity index of 67.3.
                                                                    • For Asian and Pacific Islanders, the observed self-employment rate is 23.6 per-
                                                                      cent and the model predicts that it would be 3.9 percentage points higher—27.5
                                                                      percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                      minority males. This yields a disparity index of 85.9.
                                                                    • For American Indians and Alaska Natives, the observed self-employment rate
                                                                      is 19.1 percent and the model predicts that it would be 9.1 percentage points
                                                                      higher—28.2 percent—if American Indians and Alaska Natives faced the same
                                                                      market outcomes as non-minority males. This yields a disparity index of 67.9.
                                                                    • For minorities as a group, the observed self-employment rate is 18.3 percent
                                                                      and the model predicts that it would be 8.5 percentage points higher—26.8 per-
                                                                      cent—if minorities as a group faced the same market outcomes as non-minority
                                                                      males. This yields a disparity index of 68.2.
                                                                    • For non-minority females, the observed self-employment rate is 17.9 percent
                                                                      and the model predicts that it would be 9 percentage points higher—26.9 per-
                                                                      cent—if non-minority females faced the same market outcomes as non-minority
                                                                      males. This yields a disparity index of 66.5.
                                                                    • For minorities and women as a group, the observed self-employment rate is 18.2
                                                                      percent and the model predicts that it would be 8.9 percentage points higher—
                                                                      27.1 percent—if minorities and women as a group faced the same market out-
                                                                      comes as non-minority males. This yields a disparity index of 67.3.
                                                                    Despite the addition of important qualifications and capacity variables, the results
                                                                  for Model B show that, for the economy as a whole, disparities in business formation
                                                                  rates remain large, adverse, and statistically significant even when we compare in-
                                                                  dividuals that are similarly situated in terms of their educational attainment, their
                                                                  geographic location, and their labor market experience. Specifically, the results for
                                                                  Model B show:
                                                                    • For African Americans, the observed self-employment rate is 17.8 percent and
                                                                      the model predicts that it would be 8.7 percentage points higher—26.5 per-
                                                                      cent—if African Americans faced the same market outcomes as non-minority
                                                                      males. This yields a disparity index of 67.2.




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                                                                     • For Hispanics, the observed self-employment rate is 17.9 percent and the model
                                                                       predicts that it would be 5.6 percentage points higher—23.5 percent—if His-
                                                                       panics faced the same market outcomes as non-minority males. This yields a
                                                                       disparity index of 76.1.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 23.6 per-
                                                                       cent and the model predicts that it would be 2.9 percentage points higher—26.5
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 89.1.
                                                                     • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 19.1 percent and the model predicts that it would be 7.9 percentage points
                                                                       higher—27 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 70.9.
                                                                     • For minorities as a group, the observed self-employment rate is 17.9 percent
                                                                       and the model predicts that it would be 10 percentage points higher—27.9 per-
                                                                       cent—if minorities as a group faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 64.1.
                                                                     • For non-minority females, the observed self-employment rate is 18.3 percent
                                                                       and the model predicts that it would be 6.1 percentage points higher—24.3 per-
                                                                       cent—if non-minority females faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 75.
                                                                     • For minorities and women as a group, the observed self-employment rate is 18.2
                                                                       percent and the model predicts that it would be 7.5 percentage points higher—
                                                                       25.7 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 71.
                                                                     In Model C, numerous additional variables are included that measure individual
                                                                  financial assets, family structure, mobility, immigration status, military status, and
                                                                  local macroeconomic conditions. Despite the inclusion of all these additional explan-
                                                                  atory variables, the results still show that disparities in business formation rates
                                                                  remain large, adverse, and statistically significant when we compare individuals
                                                                  who are also similarly situated in terms of these additional measures. The specific
                                                                  results for Model C show:
                                                                     • For African Americans, the observed self-employment rate is 17.8 percent and
                                                                       the model predicts that it would be 7.5 percentage points higher—25.3 per-
                                                                       cent—if African Americans faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 70.4.
                                                                     • For Hispanics, the observed self-employment rate is 17.9 percent and the model
                                                                       predicts that it would be 9 percentage points higher—26.9 percent—if Hispanics
                                                                       faced the same market outcomes as non-minority males. This yields a disparity
                                                                       index of 66.5.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 23.6 per-
                                                                       cent and the model predicts that it would be 6.8 percentage points higher—30.5
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 77.6.
                                                                     • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 19.1 percent and the model predicts that it would be 7.9 percentage points
                                                                       higher—27.1 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 70.7.
                                                                     • For minorities as a group, the observed self-employment rate is 17.9 percent
                                                                       and the model predicts that it would be 10.3 percentage points higher—28.2
                                                                       percent—if minorities as a group faced the same market outcomes as non-mi-
                                                                       nority males. This yields a disparity index of 63.4.
                                                                     • For non-minority females, the observed self-employment rate is 18.3 percent
                                                                       and the model predicts that it would be 8.1 percentage points higher—26.4 per-
                                                                       cent—if non-minority females faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 69.2.
                                                                     • For minorities and women as a group, the observed self-employment rate is 18.2
                                                                       percent and the model predicts that it would be 9.5 percentage points higher—
                                                                       27.7 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 65.8.




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                                                                       Table 11. Actual and Potential Minority Business and Female Formation Rates, 2014–2018,
                                                                                                              Construction
                                                                                                                                                                                                         Current    Expected
                                                                                                                                                                                                         Business    Business
                                                                                                                                                                                                        Formation   Formation
                                                                                                                                                                                                           Rate        Rate     Disparity
                                                                                                                                                                                                           (%)         (%)        Index

                                                                                                                         Race, Location                                                                    (1)         (2)         (3)

                                                                  Regression Model A

                                                                  African American ..........................................................................................................               17.78       26.64     66.74
                                                                  Hispanic ........................................................................................................................         17.90       26.58     67.34
                                                                  Asian and Pacific Islander ...........................................................................................                    23.64       27.52     85.90
                                                                  American Indian and Alaska Native .............................................................................                           19.13       28.19     67.86
                                                                  Two or More Races .......................................................................................................                 20.10       25.79     77.94
                                                                  Minority .........................................................................................................................        18.25       26.77     68.17
                                                                  Non-minority female .....................................................................................................                 17.91       26.92     66.53
                                                                  DBE ...............................................................................................................................       18.20       27.06     67.26
                                                                  Non-minority male ........................................................................................................                26.84

                                                                  Regression Model B

                                                                  African American ..........................................................................................................               17.78       26.47     67.17
                                                                  Hispanic ........................................................................................................................         17.90       23.52     76.11
                                                                  Asian and Pacific Islander ...........................................................................................                    23.64       26.53     89.11
                                                                  American Indian and Alaska Native .............................................................................                           19.13       27.00     70.85
                                                                  Two or More Races .......................................................................................................                 20.10       22.43     89.61
                                                                  Minority .........................................................................................................................        18.25       24.33     75.01
                                                                  Non-minority female .....................................................................................................                 17.91       27.92     64.15
                                                                  DBE ...............................................................................................................................       18.20       25.65     70.96
                                                                  Non-minority male ........................................................................................................                26.84

                                                                  Regression Model C

                                                                  African American ..........................................................................................................               17.78       25.27     70.36
                                                                  Hispanic ........................................................................................................................         17.90       26.90     66.54
                                                                  Asian and Pacific Islander ...........................................................................................                    23.64       30.45     77.64
                                                                  American Indian and Alaska Native .............................................................................                           19.13       27.06     70.69
                                                                  Two or More Races .......................................................................................................                 20.10       22.62     88.86
                                                                  Minority .........................................................................................................................        18.25       28.24     63.42
                                                                  Non-minority female .....................................................................................................                 17.91       26.38     69.18
                                                                  DBE ...............................................................................................................................       18.20       27.65     65.82
                                                                  Non-minority male ........................................................................................................                26.84
                                                                       Source and Notes: See Table 10.

                                                                        e. Findings for Architecture/Engineering
                                                                    When the scope of the inquiry is limited to just the Architecture/Engineering in-
                                                                  dustries, the results appear in Table 12. When we examine just the Architecture/
                                                                  Engineering industries, Model A identifies large, adverse, and statistically signifi-
                                                                  cant disparities in business formation rates in 2014–2018 for all minority groups
                                                                  and for women. The results for Model A show:
                                                                    • For African Americans, the observed self-employment rate is 6.5 percent and
                                                                      the model predicts that it would be 5.2 percentage points higher—11.8 per-
                                                                      cent—if African Americans faced the same market outcomes as non-minority
                                                                      males. This yields a disparity index of 55.6.
                                                                    • For Hispanics, the observed self-employment rate is 8.4 percent and the model
                                                                      predicts that it would be 3.4 percentage points higher—11.8 percent—if His-
                                                                      panics faced the same market outcomes as non-minority males. This yields a
                                                                      disparity index of 71.1.
                                                                    • For Asian and Pacific Islanders, the observed self-employment rate is 6.5 per-
                                                                      cent and the model predicts that it would be 5.1 percentage points higher—11.5
                                                                      percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                      minority males. This yields a disparity index of 55.9.
                                                                    • For American Indians and Alaska Natives, the observed self-employment rate
                                                                      is 6.2 percent and the model predicts that it would be 5.3 percentage points




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                                                                       higher—11.5 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 53.7.
                                                                     • For minorities as a group, the observed self-employment rate is 7.4 percent and
                                                                       the model predicts that it would be 4.5 percentage points higher—11.9 per-
                                                                       cent—if minorities as a group faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 62.
                                                                     • For non-minority females, the observed self-employment rate is 7.8 percent and
                                                                       the model predicts that it would be 4.2 percentage points higher—12 percent—
                                                                       if non-minority females faced the same market outcomes as non-minority males.
                                                                       This yields a disparity index of 65.4.
                                                                     • For minorities and women as a group, the observed self-employment rate is 7.6
                                                                       percent and the model predicts that it would be 4.7 percentage points higher—
                                                                       12.3 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 62.
                                                                     Despite the addition of important qualifications and capacity variables, the results
                                                                  for Model B show that, for the economy as a whole, disparities in business formation
                                                                  rates remain large, adverse, and statistically significant even when we compare in-
                                                                  dividuals that are similarly situated in terms of their educational attainment, their
                                                                  geographic location, and their labor market experience. Specifically, the results for
                                                                  Model B show:
                                                                     • For African Americans, the observed self-employment rate is 6.5 percent and
                                                                       the model predicts that it would be 3.6 percentage points higher—10.1 per-
                                                                       cent—if African Americans faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 64.6.
                                                                     • For Hispanics, the observed self-employment rate is 8.4 percent and the model
                                                                       predicts that it would be 1.6 percentage points higher—9.9 percent—if His-
                                                                       panics faced the same market outcomes as non-minority males. This yields a
                                                                       disparity index of 84.4.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 6.5 per-
                                                                       cent and the model predicts that it would be 4.4 percentage points higher—10.9
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 59.2.
                                                                     • For American Indians and Alaska Natives, the observed self-employment rate
                                                                       is 6.2 percent and the model predicts that it would be 4.4 percentage points
                                                                       higher—10.5 percent—if American Indians and Alaska Natives faced the same
                                                                       market outcomes as non-minority males. This yields a disparity index of 58.6.
                                                                     • For minorities as a group, the observed self-employment rate is 7.8 percent and
                                                                       the model predicts that it would be 3.1 percentage points higher—11 percent—
                                                                       if minorities as a group faced the same market outcomes as non-minority males.
                                                                       This yields a disparity index of 71.4.
                                                                     • For non-minority females, the observed self-employment rate is 7.4 percent and
                                                                       the model predicts that it would be 3.1 percentage points higher—10.5 per-
                                                                       cent—if non-minority females faced the same market outcomes as non-minority
                                                                       males. This yields a disparity index of 70.5.
                                                                     • For minorities and women as a group, the observed self-employment rate is 7.6
                                                                       percent and the model predicts that it would be 3.3 percentage points higher—
                                                                       10.9 percent—if minorities and women as a group faced the same market out-
                                                                       comes as non-minority males. This yields a disparity index of 69.6.
                                                                     In Model C, numerous additional variables are included that measure individual
                                                                  financial assets, family structure, mobility, immigration status, military status, and
                                                                  local macroeconomic conditions. Despite the inclusion of all these additional explan-
                                                                  atory variables, the results still show that disparities in business formation rates
                                                                  remain large, adverse, and statistically significant when we compare individuals
                                                                  who are also similarly situated in terms of these additional measures. The specific
                                                                  results for Model C show:
                                                                     • For African Americans, the observed self-employment rate is 6.5 percent and
                                                                       the model predicts that it would be 3 percentage points higher—9.6 percent—
                                                                       if African Americans faced the same market outcomes as non-minority males.
                                                                       This yields a disparity index of 68.3.
                                                                     • For Hispanics, the observed self-employment rate is 8.4 percent and the model
                                                                       predicts that it would be 1.8 percentage points higher—10.2 percent—if His-
                                                                       panics faced the same market outcomes as non-minority males. This yields a
                                                                       disparity index of 82.3.
                                                                     • For Asian and Pacific Islanders, the observed self-employment rate is 6.5 per-
                                                                       cent and the model predicts that it would be 4.9 percentage points higher—11.4
                                                                       percent—if Asian and Pacific Islanders faced the same market outcomes as non-
                                                                       minority males. This yields a disparity index of 56.7.




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                                                                       • For American Indians and Alaska Natives, the observed self-employment rate
                                                                         is 6.2 percent and the model predicts that it would be 4.1 percentage points
                                                                         higher—10.3 percent—if American Indians and Alaska Natives faced the same
                                                                         market outcomes as non-minority males. This yields a disparity index of 60.3.
                                                                       • For minorities as a group, the observed self-employment rate is 7.8 percent and
                                                                         the model predicts that it would be 3.4 percentage points higher—11.2 per-
                                                                         cent—if minorities as a group faced the same market outcomes as non-minority
                                                                         males. This yields a disparity index of 69.9.
                                                                       • For non-minority females, the observed self-employment rate is 7.4 percent and
                                                                         the model predicts that it would be 3.1 percentage points higher—10.5 per-
                                                                         cent—if non-minority females faced the same market outcomes as non-minority
                                                                         males. This yields a disparity index of 70.5.
                                                                       • For minorities and women as a group, the observed self-employment rate is 7.6
                                                                         percent and the model predicts that it would be 3.5 percentage points higher—
                                                                         11.1 percent—if minorities and women as a group faced the same market out-
                                                                         comes as non-minority males. This yields a disparity index of 68.5.

                                                                       Table 12. Actual and Potential Minority and Female Business Formation Rates, 2014–2018,
                                                                                                        Architecture/Engineering
                                                                                                                                                                                                         Current    Expected
                                                                                                                                                                                                         Business    Business
                                                                                                                                                                                                        Formation   Formation
                                                                                                                                                                                                           Rate        Rate     Disparity
                                                                                                                                                                                                           (%)         (%)        Index

                                                                                                                         Race, Location                                                                    (1)         (2)         (3)

                                                                  Regression Model A

                                                                  African American ..........................................................................................................                6.54       11.77     55.56
                                                                  Hispanic ........................................................................................................................          8.37       11.78     71.05
                                                                  Asian and Pacific Islander ...........................................................................................                     6.45       11.54     55.89
                                                                  American Indian and Alaska Native .............................................................................                            6.18       11.50     53.74
                                                                  Two or More Races .......................................................................................................                  8.68       11.92     72.82
                                                                  Minority .........................................................................................................................         7.40       11.94     61.98
                                                                  Non-minority female .....................................................................................................                  7.84       11.99     65.39
                                                                  DBE ...............................................................................................................................        7.60       12.25     62.04
                                                                  Non-minority male ........................................................................................................                12.15

                                                                  Regression Model B

                                                                  African American ..........................................................................................................                6.54       10.13     64.56
                                                                  Hispanic ........................................................................................................................          8.37        9.92     84.38
                                                                  Asian and Pacific Islander ...........................................................................................                     6.45       10.89     59.23
                                                                  American Indian and Alaska Native .............................................................................                            6.18       10.54     58.63
                                                                  Two or More Races .......................................................................................................                  8.68        9.83      88.30
                                                                  Minority .........................................................................................................................         7.40       10.50     70.48
                                                                  Non-minority female .....................................................................................................                  7.84       10.98     71.40
                                                                  DBE ...............................................................................................................................        7.60       10.92     69.60
                                                                  Non-minority male ........................................................................................................                12.15

                                                                  Regression Model C

                                                                  African American ..........................................................................................................                6.54        9.58     68.27
                                                                  Hispanic ........................................................................................................................          8.37       10.17     82.30
                                                                  Asian and Pacific Islander ...........................................................................................                     6.45       11.37     56.73
                                                                  American Indian and Alaska Native .............................................................................                            6.18       10.25     60.29
                                                                  Two or More Races .......................................................................................................                  8.68        9.85      88.12
                                                                  Minority .........................................................................................................................         7.40       10.49     70.54
                                                                  Non-minority female .....................................................................................................                  7.84       11.22     69.88
                                                                  DBE ...............................................................................................................................        7.60       11.09     68.53
                                                                  Non-minority male ........................................................................................................                12.15
                                                                       Source and Notes: See Table 10.

                                                                  2. Discrimination Impacting Business Earnings
                                                                     Even for those disproportionately few minority and female entrepreneurs who
                                                                  manage against the odds—as we have just seen from the results in Tables 10–12—
                                                                  to form their own businesses, their earnings from those businesses tend to lag far




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                                                                                                                  85
                                                                  behind their non-minority male counterparts. These disparities, just as those ob-
                                                                  served with respect to business formation, tend to remain large, adverse, and statis-
                                                                  tically significant—even when other important non-discriminatory attributes are
                                                                  held constant.
                                                                          a. Methods and Data
                                                                     I examined deficits in business owner earnings between minorities, women, and
                                                                  their non-minority male counterparts using the same framework as above. Model A
                                                                  included only the race, sex, and time indicators, thus showing the raw disparities
                                                                  in earnings between the groups. Model B consisted of our set of qualifications and
                                                                  capacity controls, which include educational attainment, geographic location, and
                                                                  labor market experience. Finally, Model C included all the controls from Models A
                                                                  and B plus those for individual financial assets, family structure, mobility, immigra-
                                                                  tion status, military status, and local macroeconomic conditions.
                                                                          b. Economy-Wide Findings
                                                                     As shown in Table 13, the baseline regression equation (Model A) includes only
                                                                  indicators for race, sex and time. This is the raw difference in earnings between mi-
                                                                  nority and women business owners, one the one hand, and non-minority male busi-
                                                                  ness owners, on the other. The results for Model A show:
                                                                     • African American business owners earned 46.2 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 54 cents.
                                                                     • Hispanic business owners earned 26.9 percent less than non-minority male
                                                                       business owners from 2014–2018. For each dollar of business earnings accruing
                                                                       to non-minority males, Hispanic business owners made just 73 cents.
                                                                     • Asian and Pacific business owners earned 8.9 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 91
                                                                       cents.
                                                                     • Native business owners earned 44 percent less than non-minority male business
                                                                       owners from 2014–2018. For each dollar of business earnings accruing to non-
                                                                       minority males, Native business owners made just 56 cents.
                                                                     • Minority business owners earned 29.9 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 70 cents.
                                                                     • Non-minority female business owners earned 46.3 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       54 cents.
                                                                     • Minority and Female business owners earned 39.2 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       61 cents.
                                                                     In Model B, which accounts for some common qualifications and capacity controls,
                                                                  we observe small changes in both directions for all the groups except Asian and Pa-
                                                                  cific Islanders, for whom the business earnings gap increases significantly compared
                                                                  to Model A. Specifically, the results for Model B show:
                                                                     • African American business owners earned 44.8 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 55 cents.
                                                                     • Hispanic business owners earned 26.1 percent less than non-minority male
                                                                       business owners from 2014–2018. For each dollar of business earnings accruing
                                                                       to non-minority males, Hispanic business owners made just 74 cents.
                                                                     • Asian and Pacific business owners earned 18.2 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 82
                                                                       cents.
                                                                     • Native business owners earned 40.6 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Native business owners made just 59 cents.
                                                                     • Minority business owners earned 30.9 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 69 cents.
                                                                     • Non-minority female business owners earned 45 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-




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                                                                                                                  86
                                                                       cruing to non-minority males, non-minority female business owners made just
                                                                       55 cents.
                                                                    • Minority and Female business owners earned 39.6 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       60 cents.
                                                                    In Model C, which accounts for a large set of additional explanatory variables re-
                                                                  lated to business owner earnings, we again observe small changes in both directions
                                                                  for all the groups except Asian and Pacific Islanders, for whom the business earn-
                                                                  ings gap increases significantly compared to Model B. Specifically, the results for
                                                                  Model C show:
                                                                    • African American business owners earned 38.2 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 62 cents.
                                                                    • Hispanic business owners earned 29.4 percent less than non-minority male
                                                                       business owners from 2014–2018. For each dollar of business earnings accruing
                                                                       to non-minority males, Hispanic business owners made just 71 cents.
                                                                    • Asian and Pacific business owners earned 28.9 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 71
                                                                       cents.
                                                                    • Native business owners earned 36.9 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Native business owners made just 63 cents.
                                                                    • Minority business owners earned 44.4 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 56 cents.
                                                                    • Non-minority female business owners earned 33.3 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       67 cents.
                                                                    • Minority and Female business owners earned 41.1 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       59 cents.
                                                                    All of these economy-wide findings are statistically significant at a 95 percent
                                                                  probability level or better.




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                                                                                                                                                                 87
                                                                              Table 13. Minority and Female Business Owner Earnings Disparities, All Industries
                                                                                                                                                                                                                                             Cents
                                                                                                                                                                                                                                           Earned Per
                                                                                                                                                                                                                               Business     Dollar of
                                                                                                                                                                                                                               Earnings   Non-Minority
                                                                                                                                                                                                                                Deficit       Male
                                                                                                                                                                                                                                 (%)        Earnings

                                                                                                                                    Race, Location                                                                               (1)          (2)

                                                                  Regression Model A

                                                                  African American .................................................................................................................................             –46.2              54¢
                                                                  Hispanic ...............................................................................................................................................       –26.9              73¢
                                                                  Asian and Pacific Islander ..................................................................................................................                   –8.9              91¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –44.0              56¢
                                                                  Two or More Races ..............................................................................................................................               –45.3              55¢
                                                                  Minority ................................................................................................................................................      –29.9              70¢
                                                                  Non-minority female ............................................................................................................................               –46.3              54¢
                                                                  DBE ......................................................................................................................................................     –39.2              61¢

                                                                  Regression Model B

                                                                  African American .................................................................................................................................             –44.8              55¢
                                                                  Hispanic ...............................................................................................................................................       –26.1              74¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –18.2              82¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –40.6              59¢
                                                                  Two or More Races ..............................................................................................................................               –40.1              60¢
                                                                  Minority ................................................................................................................................................      –30.9              69¢
                                                                  Non-minority female ............................................................................................................................               –45.0              55¢
                                                                  DBE ......................................................................................................................................................     –39.6              60¢

                                                                  Regression Model C

                                                                  African American .................................................................................................................................             –38.2              62¢
                                                                  Hispanic ...............................................................................................................................................       –29.4              71¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –28.9              71¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –36.9              63¢
                                                                  Two or More Races ..............................................................................................................................               –37.9              62¢
                                                                  Minority ................................................................................................................................................      –33.3              67¢
                                                                  Non-minority female ............................................................................................................................               –44.4              56¢
                                                                  DBE ......................................................................................................................................................     –41.1              59¢
                                                                     Source and Notes: Calculations by the author from the 2014–2018 ACS PUMS. Figures in italics are statistically significant at a 95 percent
                                                                  probability level or better.

                                                                         c. Findings for Construction
                                                                    As shown in Table 14, the baseline regression equation (Model A) includes only
                                                                  indicators for race, sex and time. This is the raw difference in earnings between mi-
                                                                  nority and women business owners, one the one hand, and non-minority male busi-
                                                                  ness owners, on the other. The results for Model A show:
                                                                    • African American business owners earned 40.4 percent less than non-minority
                                                                      male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                      ness earnings accruing to non-minority males, African American business own-
                                                                      ers made just 60 cents.
                                                                    • Hispanic business owners earned 12.4 percent less than non-minority male
                                                                      business owners from 2014–2018. For each dollar of business earnings accruing
                                                                      to non-minority males, Hispanic business owners made just 88 cents.
                                                                    • Asian and Pacific business owners earned 1.1 percent less than non-minority
                                                                      male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                      cruing to non-minority males, Asian and Pacific business owners made just 99
                                                                      cents.
                                                                    • Native business owners earned 30.4 percent less than non-minority male busi-
                                                                      ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                      non-minority males, Native business owners made just 70 cents.
                                                                    • Minority business owners earned 17.3 percent less than non-minority male busi-
                                                                      ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                      non-minority males, minority business owners made just 83 cents.
                                                                    • Non-minority female business owners earned 45.6 percent less than non-minor-
                                                                      ity male business owners from 2014–2018. For each dollar of business earnings




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                                                                                                                  88
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       54 cents.
                                                                     • Minority and Female business owners earned 22.3 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       78 cents.
                                                                     In Model B, which accounts for some common qualifications and capacity controls,
                                                                  we observe small changes in both directions for all the groups except Asian and Pa-
                                                                  cific Islanders, for whom the business earnings gap increases significantly compared
                                                                  to Model A. Specifically, the results for Model B show:
                                                                     • African American business owners earned 39.9 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 60 cents.
                                                                     • Hispanic business owners earned 11 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Hispanic business owners made just 89 cents.
                                                                     • Asian and Pacific business owners earned 10.7 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 89
                                                                       cents.
                                                                     • Native business owners earned 26.9 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Native business owners made just 73 cents.
                                                                     • Minority business owners earned 18.5 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 82 cents.
                                                                     • Non-minority female business owners earned 46.4 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       54 cents.
                                                                     • Minority and Female business owners earned 25.1 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       75 cents.
                                                                     In Model C, which accounts for a large set of additional explanatory variables re-
                                                                  lated to business owner earnings, we again observe small changes in both directions
                                                                  for all the groups except Asian and Pacific Islanders, for whom the business earn-
                                                                  ings gap increases significantly compared to Model B. Specifically, the results for
                                                                  Model C show:
                                                                     • African American business owners earned 32.8 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 67 cents.
                                                                     • Hispanic business owners earned 16.7 percent less than non-minority male
                                                                       business owners from 2014–2018. For each dollar of business earnings accruing
                                                                       to non-minority males, Hispanic business owners made just 83 cents.
                                                                     • Asian and Pacific business owners earned 21.6 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 78
                                                                       cents.
                                                                     • Native business owners earned 22.2 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Native business owners made just 78 cents.
                                                                     • Minority business owners earned 47.5 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 52 cents.
                                                                     • Non-minority female business owners earned 22.5 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       78 cents.
                                                                     • Minority and Female business owners earned 30.7 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       69 cents.




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                                                                                                                                                                 89
                                                                    With only one exception, once again, all of these findings for the construction re-
                                                                  gressions are statistically significant at a 95 percent probability level or better.38

                                                                               Table 14. Minority and Female Business Owner Earnings Disparities, Construction
                                                                                                                                                                                                                                             Cents
                                                                                                                                                                                                                                           Earned Per
                                                                                                                                                                                                                               Business     Dollar of
                                                                                                                                                                                                                               Earnings   Non-Minority
                                                                                                                                                                                                                                Deficit       Male
                                                                                                                                                                                                                                 (%)        Earnings

                                                                                                                                    Race, Location                                                                               (1)          (2)

                                                                  Regression Model A

                                                                  African American .................................................................................................................................             –40.4              60¢
                                                                  Hispanic ...............................................................................................................................................       –12.4              88¢
                                                                  Asian and Pacific Islander ..................................................................................................................                    –1.1             99¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –30.4              70¢
                                                                  Two or More Races ..............................................................................................................................               –29.0              71¢
                                                                  Minority ................................................................................................................................................      –17.3              83¢
                                                                  Non-minority female ............................................................................................................................               –45.6              54¢
                                                                  DBE ......................................................................................................................................................     –22.3              78¢

                                                                  Regression Model B

                                                                  African American .................................................................................................................................             –39.9              60¢
                                                                  Hispanic ...............................................................................................................................................       –11.0              89¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –10.7              89¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –26.9              73¢
                                                                  Two or More Races ..............................................................................................................................               –28.3              72¢
                                                                  Minority ................................................................................................................................................      –18.5              82¢
                                                                  Non-minority female ............................................................................................................................               –46.4              54¢
                                                                  DBE ......................................................................................................................................................     –25.1              75¢

                                                                  Regression Model C

                                                                  African American .................................................................................................................................             –32.8              67¢
                                                                  Hispanic ...............................................................................................................................................       –16.7              83¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –21.6              78¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –22.2              78¢
                                                                  Two or More Races ..............................................................................................................................               –25.8              74¢
                                                                  Minority ................................................................................................................................................      –22.5              78¢
                                                                  Non-minority female ............................................................................................................................               –47.5              52¢
                                                                  DBE ......................................................................................................................................................     –30.7              69¢
                                                                       Source and Notes: See Table 13.
                                                                         d. Findings for Architecture/Engineering
                                                                    As shown in Table 15, the baseline regression equation (Model A) includes only
                                                                  indicators for race, sex and time. This is the raw difference in earnings between mi-
                                                                  nority and women business owners, one the one hand, and non-minority male busi-
                                                                  ness owners, on the other. The results for Model A show:
                                                                    • African American business owners earned 59.2 percent less than non-minority
                                                                      male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                      ness earnings accruing to non-minority males, African American business own-
                                                                      ers made just 41 cents.
                                                                    • Hispanic business owners earned 16.3 percent less than non-minority male
                                                                      business owners from 2014–2018. For each dollar of business earnings accruing
                                                                      to non-minority males, Hispanic business owners made just 84 cents.
                                                                    • Asian and Pacific business owners earned 23.4 percent less than non-minority
                                                                      male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                      cruing to non-minority males, Asian and Pacific business owners made just 77
                                                                      cents.
                                                                    • Native business owners earned 60.8 percent less than non-minority male busi-
                                                                      ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                      non-minority males, Native business owners made just 39 cents.

                                                                    38 The sole exception is again the result in Model A for Asian and Pacific Islanders. However
                                                                  this result was not statistically significant.




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                                                                                                                  90
                                                                     • Minority business owners earned 30 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 70 cents.
                                                                     • Non-minority female business owners earned 46 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, non-minority female business owners made just
                                                                       54 cents.
                                                                     • Minority and Female business owners earned 39 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, minority and female business owners made just
                                                                       61 cents.
                                                                     In Model B, which accounts for some common qualifications and capacity controls,
                                                                  we observe once again just small changes in both directions for all the groups except
                                                                  Asian and Pacific Islanders, for whom the business earnings gap increases signifi-
                                                                  cantly compared to Model A. Specifically, the results for Model B show:
                                                                     • African American business owners earned 55 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 45 cents.
                                                                     • Hispanic business owners earned 6.9 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Hispanic business owners made just 93 cents.
                                                                     • Asian and Pacific business owners earned 28.1 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 72
                                                                       cents.
                                                                     • Native business owners earned 70.5 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Native business owners made just 30 cents.
                                                                     • Minority business owners earned 27.2 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 73 cents.
                                                                     • Non-minority female business owners earned 43.4 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       57 cents.
                                                                     • Minority and Female business owners earned 36.7 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, minority and female business owners made just
                                                                       63 cents.
                                                                     In Model C, which accounts for a large set of additional explanatory variables re-
                                                                  lated to business owner earnings, we again observe just small changes in both direc-
                                                                  tions for all groups. Specifically, the results for Model C show:
                                                                     • African American business owners earned 50.6 percent less than non-minority
                                                                       male business owners from 2014–2018. In other words, for each dollar of busi-
                                                                       ness earnings accruing to non-minority males, African American business own-
                                                                       ers made just 49 cents.
                                                                     • Hispanic business owners earned 9.1 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, Hispanic business owners made just 91 cents.
                                                                     • Asian and Pacific business owners earned 30.7 percent less than non-minority
                                                                       male business owners from 2014–2018. For each dollar of business earnings ac-
                                                                       cruing to non-minority males, Asian and Pacific business owners made just 69
                                                                       cents.
                                                                     • Native business owners earned 71 percent less than non-minority male business
                                                                       owners from 2014–2018. For each dollar of business earnings accruing to non-
                                                                       minority males, Native business owners made just 29 cents.
                                                                     • Minority business owners earned 45.1 percent less than non-minority male busi-
                                                                       ness owners from 2014–2018. For each dollar of business earnings accruing to
                                                                       non-minority males, minority business owners made just 55 cents.
                                                                     • Non-minority female business owners earned 28.9 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings
                                                                       accruing to non-minority males, non-minority female business owners made just
                                                                       71 cents.
                                                                     • Minority and Female business owners earned 39.5 percent less than non-minor-
                                                                       ity male business owners from 2014–2018. For each dollar of business earnings




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                                                                                                                                                                 91
                                                                      accruing to non-minority males, minority and female business owners made just
                                                                      60 cents.
                                                                    With only two exceptions, all of these findings for the Architecture/Engineering
                                                                  regressions are statistically significant at a 95 percent probability level or better.39

                                                                  Table 15. Minority and Female Business Owner Earnings Disparities, Architecture/Engineering
                                                                                                                                                                                                                                             Cents
                                                                                                                                                                                                                                           Earned Per
                                                                                                                                                                                                                               Business     Dollar of
                                                                                                                                                                                                                               Earnings   Non-Minority
                                                                                                                                                                                                                                Deficit       Male
                                                                                                                                                                                                                                 (%)        Earnings

                                                                                                                                    Race, Location                                                                               (1)          (2)

                                                                  Regression Model A

                                                                  African American .................................................................................................................................             –59.2              41¢
                                                                  Hispanic ...............................................................................................................................................        –16.3             84¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –23.4              77¢
                                                                  American Indian and Alaska Native ...................................................................................................                           –60.8             39¢
                                                                  Two or More Races ..............................................................................................................................               –39.0              61¢
                                                                  Minority ................................................................................................................................................      –30.0              70¢
                                                                  Non-minority female ............................................................................................................................               –46.0              54¢
                                                                  DBE ......................................................................................................................................................     –39.0              61¢

                                                                  Regression Model B

                                                                  African American .................................................................................................................................             –55.0              45¢
                                                                  Hispanic ...............................................................................................................................................         –6.9             93¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –28.1              72¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –70.5              30¢
                                                                  Two or More Races ..............................................................................................................................               –32.3              68¢
                                                                  Minority ................................................................................................................................................      –27.2              73¢
                                                                  Non-minority female ............................................................................................................................               –43.4              57¢
                                                                  DBE ......................................................................................................................................................     –36.7              63¢

                                                                  Regression Model C

                                                                  African American .................................................................................................................................             –50.6              49¢
                                                                  Hispanic ...............................................................................................................................................         –9.1             91¢
                                                                  Asian and Pacific Islander ..................................................................................................................                  –30.7              69¢
                                                                  American Indian and Alaska Native ...................................................................................................                          –71.0              29¢
                                                                  Two or More Races ..............................................................................................................................               –27.9              72¢
                                                                  Minority ................................................................................................................................................      –28.9              71¢
                                                                  Non-minority female ............................................................................................................................               –45.1              55¢
                                                                  DBE ......................................................................................................................................................     –39.5              60¢
                                                                       Source and Notes: See Table 13.

                                                                         e. Conclusions from American Community Survey Data
                                                                    This section has documented that when we examine the status of minorities and
                                                                  women compared to non-minority males in the industry segments relevant to Fed-
                                                                  eral surface and aviation transportation funding, the results look very similar to
                                                                  what we observe elsewhere in the economy.
                                                                    That is, even when other non-discriminatory factors are held constant using the
                                                                  statistical technique of regression analysis, the disparities in business formation
                                                                  rates between African Americans, Hispanics, Asians and Pacific Islanders, American
                                                                  Indians and Alaska Natives, and women, on the one hand, and their non-minority
                                                                  male counterparts, on the other, remain large, adverse, and statistically significant.
                                                                  I have documented such disparities in this testimony for the Nation as a whole and
                                                                  throughout the states, and in the economy as a whole as well as in Construction
                                                                  and Architecture/Engineering, which are key industries with respect to Federal sur-
                                                                  face and aviation transportation funding.
                                                                    Furthermore, I have documented that even for those minority and female entre-
                                                                  preneurs who manage against the odds to form their own businesses, their earnings

                                                                       39 The exceptions are the results in Models B and C for Hispanics.




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                                                                  from those businesses lag far behind their non-minority male counterparts.40 These
                                                                  disparities as well remain large, adverse, and statistically significant even when
                                                                  other non-discriminatory attributes are held constant.
                                                                    These results are fully consistent with the conclusion that discrimination con-
                                                                  tinues to adversely affect minorities and women operating in United States business
                                                                  markets, and in particular those markets that are relevant to Federal surface and
                                                                  aviation transportation funding.

                                                                                                     E. OVERALL CONCLUSIONS
                                                                    In preparing this testimony, I conducted extensive original research using almost
                                                                  100 previously produced disparity studies, and current and past data from the Sur-
                                                                  vey of Business Owners, the Annual Business Survey, and the American Community
                                                                  Survey. This research is a continuation of similar research I have performed over
                                                                  the course of my career as an economist. Based on the findings presented above,
                                                                  I conclude that there is strong evidence, both past and present, of large, adverse,
                                                                  and statistically significant disparities facing minority-owned and women-owned
                                                                  business enterprises in the United States. Moreover, these disparities cannot be ex-
                                                                  plained solely, or even primarily, by differences between the relevant populations
                                                                  in factors untainted by the effects of discrimination. These disparities are primarily
                                                                  due to discrimination, in the economy as a whole, as well as in the markets such
                                                                  as construction, architecture, and engineering that most relevant to Federal surface
                                                                  and aviation transportation funding.

                                                                                                            F. REFERENCES
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                                                                     40 In addition to the analyses of business owner earnings, I also ran comparable analyses on
                                                                  the annual earnings of wage and salary workers—as opposed to business owners—in the indus-
                                                                  try segments relevant to Federal surface and aviation transportation funding as well as in the
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                                                                  reported here, the results of the wage and salary regressions look very similar to those pre-
                                                                  sented above—in the vast majority of instances, large, adverse, and statistically significant defi-
                                                                  cits were observed for African Americans, Hispanics, Asians and Pacific Islanders, American In-
                                                                  dians and Alaska Natives, and non-minority women, as well as for minorities as a group and
                                                                  minorities and women as a group.




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                                                                  veys/popest/datasets/2010-2019/national/totals/nst-est2019-alldata.csv>. Accessed 31
                                                                  August, 2020.




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                                                                  ture, 111th Cong. (January 22), Serial No. 111–2.
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                                                                  Gender-Conscious Federal Contracting Programs: An Update to the May 23, 1996
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                                                                  testimony of David Hinson, National Director, Minority Business Development
                                                                  Agency, U.S. Department of Commerce, before the U.S. House Committee on Over-
                                                                  sight and Government Reform, Subcommittee on Government Management, Organi-
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                                                                     Wainwright, Jon S. 2000. Racial Discrimination and Minority Business Enter-
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                                                                  District Court for the District of Columbia, Case No. 12–CV–744, March 8.
                                                                     Wainwright, Jon S. (2013b), Report of Defendant’s Expert in Midwest Fence Cor-
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                                                                  Start-up Hurdles in Underserved Communities: Access to Venture Capital and En-
                                                                  trepreneurship Training,’’ September 11.
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                                                                  and Availability Study for the Federal DBE Program. National Cooperative High-
                                                                  way Research Program Report 644. Washington, DC.: Transportation Research
                                                                  Board.

                                                                    Mr. DEFAZIO. Thank you, Dr. Wainwright, a good summary of 90
                                                                  pages of comprehensive research. So thanks very much. Your full
                                                                  research will be entered into the record.
                                                                    So now we will proceed to questions. Each Member will have 5
                                                                  minutes to question the witnesses. I will first begin by recognizing
                                                                  myself.
                                                                    Ms. Boyer, in addition to your testimony today, you sent a com-
                                                                  pelling letter to the committee, when the committee reauthorized
                                                                  the DBE program in H.R. 2 earlier this year. I ask unanimous con-
                                                                  sent to put this letter in the record.
                                                                    Without objection.
                                                                    [The information follows:]
                                                                                                            f

                                                                  Letter of June 25, 2020, from Geri E. Boyer, P.E., President, Kaskaskia En-
                                                                   gineering Group, LLC, Submitted for the Record by Hon. Peter A. DeFa-
                                                                   zio
                                                                                                                                      JUNE 25, 2020.
                                                                  Congressman PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                       resentatives, Washington, DC.
                                                                  RE: Response to the request from the Committee on Transportation and Infrastruc-
                                                                        ture for a letter or statement on the Disadvantaged Business Enterprise Pro-
                                                                        gram.
                                                                     DEAR CONGRESSMAN DEFAZIO:
                                                                     I am a licensed professional engineer and sole owner of Kaskaskia Engineering
                                                                  Group, a civil engineering design firm. My firm has had the opportunity to work
                                                                  on public infrastructure projects across the Midwest, and approximately 82% of the
                                                                  $10,000,000 of work done every year can be attributed to the Disadvantaged Busi-
                                                                  ness Enterprise Program (DBE). It is because of the DBE Program that my firm
                                                                  is in existence and continues to grow.
                                                                     For the first twenty five years of my civil engineering career, I experienced dis-
                                                                  crimination on many levels including advancement and salary. I was told over and
                                                                  over by supervisors at a state agency that although I was an overachiever and did
                                                                  excellent work it would not be reflected in my yearly raise because I was not ‘‘the
                                                                  breadwinner’’ of my family. When I left that agency, the lowest paid managers were
                                                                  all women. In those years, I was also told that I needed to make a choice between
                                                                  being an engineer and being a mother. My inspiration for started my own firm was
                                                                  to take care of myself, to have the flexibility to work while being a mother, and to
                                                                  afford those same opportunities to other women and men.
                                                                     The only reason I was able to start my own business was the DBE program. I
                                                                  worked with DBE firms while employed by a large ‘‘white-male led’’ company, and
                                                                  realized that with the help of the program, I could be a business owner. I survived
                                                                  the first year while working through the certification processed on small city
                                                                  projects I got because of my reputation. Those projects were small and it was only
                                                                  enough fee to keep a few people busy. Once I was BDE certified, many consulting
                                                                  firms used my firm to satisfy their DBE requirement. My firm grew fast once I had
                                                                  the certification.
                                                                     Even though I have been in business for 14 years and won several statewide
                                                                  awards for my engineering, I still cannot compete with established engineering
                                                                  firms owned/managed by white-males. I have participated in many equity surveys
                                                                  and discussions, and the question always comes up about the need for this program
                                                                  to continue. I can testify that without this program, the work I get on federal and
                                                                  state infrastructure projects would cease. The only reason other firms team with me




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                                                                  is because I am a certified DBE firm first and then because I do excellent work.
                                                                  I am not their buddy. I do not look like them. Large firms do and will continue to
                                                                  keep all the work for themselves unless they are mandated to give a percentage
                                                                  away. Small firms do not have the capacity to propose on large projects by them-
                                                                  selves, so without the DBE program, small firms would never have a chance to work
                                                                  on a portion of these large projects.
                                                                     Instead of discussing if the program is needed, the discussion should center
                                                                  around expanding the program by increasing the limits and making the program
                                                                  more accessible. A policy of helping small businesses owned and controlled by so-
                                                                  cially and economically disadvantaged individuals, including minorities and women,
                                                                  participating in contracting opportunities created by Department of Transportation
                                                                  (DOT) financial assistance programs, has been in effect for more than 20 years. It
                                                                  has had several revisions which has made the program function more efficiently for
                                                                  business such as the Unified Certification Program (UCP) and the interstate certifi-
                                                                  cation provision. But there is still more that needs to be done to help this program
                                                                  be more successful.
                                                                     In an ever changing and volatile business market, corporate growth and stability
                                                                  rely on diversification strategies, which often include providing services to multiple
                                                                  federal, state, and local agencies, as well as private corporations across regional, na-
                                                                  tional, and international markets. Diversification has long been a successful strat-
                                                                  egy for large businesses, but it is just as important for the survival and development
                                                                  of small firms.
                                                                     Firms owned by women and minority groups that want to employ diversification
                                                                  strategies are encumbered by the individual state agencies that do not want to ac-
                                                                  cept the DBE’s certification from their cognizant certifying agency. The amended 49
                                                                  CFR Part 26, which went into effect on November 3, 2014, implemented a revised
                                                                  uniform certification application and reporting forms and created a uniform personal
                                                                  net worth form for use by applicant owners, which collects the data required by the
                                                                  Department’s Surface Transportation Reauthorization, Moving Ahead for Progress
                                                                  in the 21st Century Act (MAP–21). Even though there is a uniform process, states
                                                                  do not trust the certification process of neighboring states and require the entire ap-
                                                                  plication again. This creates unnecessary work for the DBE firm and the public
                                                                  agency who both have limited time and budget pressures. And with the rising prob-
                                                                  lem of identity theft, it’s stressful to be sending all your personal information to
                                                                  multiple agencies in multiple states.
                                                                     A national unified program could strengthen, streamline, and simplify the DBE
                                                                  certification program, creating a program that is more efficient and effective for
                                                                  women and minority firms working for multiple agencies across multiple states. A
                                                                  National UCP to serve as a ‘‘one-stop shopping’’ to applicants for certification is
                                                                  needed. Any state agency using the unified certification application could be a co-
                                                                  ordinating member of the National UCP, and its certification would be recognized
                                                                  as a National UCP. Under a National UCP, the firm applies one time for certifi-
                                                                  cation as DBE with their participating cognizant agency or a national organization.
                                                                  If approved, that certification would be honored by all recipients of federally funded
                                                                  and non-federally funded projects in all states. The National UCP would only certify
                                                                  firms using the unified certification application. Prequalification, determination if
                                                                  an applicant has the requisite resources and experience to complete the service/cat-
                                                                  egory as required, would remain with the contracting agency.
                                                                     The certification and record would be held by a national agency/organization, such
                                                                  as the Federal Highway Administration (FHWA), National Council of Examiners for
                                                                  Engineering and Surveying (NCEES) or Women’s Business Enterprise National
                                                                  Council (WBENC). The FHWA has offices in every state and would be locally avail-
                                                                  able to firms that have questions or need to meet in person. NCEES and WBENC
                                                                  already have systems in place to review a standard application, evaluate its compli-
                                                                  ance with federal regulations, and certify its credibility. They both allow for the
                                                                  upload of documents necessary for annual renewal (Affidavit of Continued DBE Cer-
                                                                  tification). WBENC’s regional offices also have the capacity to conduct site visits for
                                                                  compliance with the 49 CFR Part 26. Members of the NCEES system can easily re-
                                                                  quest their record be sent to other states for licensure. A similar system could be
                                                                  employed by NCEES for a National UCP. A national unified program could
                                                                  strengthen, streamline, and simplify the DBE certification program, creating a pro-
                                                                  gram that is more efficient and effective for women and minority firms working for
                                                                  multiple agencies across multiple states.
                                                                     If you have any questions or need any additional information, please contact me.
                                                                        Respectfully,
                                                                                                                              GERI E. BOYER, P.E.,
                                                                                                        President, Kaskaskia Engineering Group, LLC.




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                                                                     Mr. DEFAZIO. You know, you detailed experiences there with dis-
                                                                  crimination throughout your career. And you said it was only be-
                                                                  cause of the DBE program you were able to start your business,
                                                                  grow your business in the face of that discrimination. And one
                                                                  quote was, ‘‘Even though I have been in business for 14 years and
                                                                  won several statewide awards for my engineering, I still cannot
                                                                  compete with established engineering firms owned and managed by
                                                                  White males. I have participated in many equity surveys and dis-
                                                                  cussions, and the question always comes up about the need for this
                                                                  program to continue. I can testify that without this program, the
                                                                  work I get on Federal and State infrastructure projects would
                                                                  cease. The only reason other firms team with me is because I am
                                                                  a certified DBE firm first and then because I do excellent work. I
                                                                  am not their buddy. I do not look like them.’’
                                                                     That is pretty compelling, Ms. Boyer. You stand by that quote?
                                                                     Ms. BOYER. Absolutely.
                                                                     Mr. DEFAZIO. Yes, OK. That is pretty sad.
                                                                     Ms. Williams, would you agree with Ms. Boyer’s assessments in
                                                                  these matters?
                                                                     Ms. WILLIAMS. Absolutely.
                                                                     Mr. DEFAZIO. OK. Well, that really underlines why we are here
                                                                  today, why we are reauthorizing the program, and also looking at
                                                                  ways to make the program work better.
                                                                     Dr. Wainwright, at the end of your testimony you mentioned the
                                                                  private-sector study versus the public sector with the DBE pro-
                                                                  gram. Can you give us a rough, quantified comparison in any way,
                                                                  in brief?
                                                                     I know that you go into it in more depth in your study, but—Dr.
                                                                  Wainwright, are you still there?
                                                                     [Pause.]
                                                                     Mr. DEFAZIO. Yes, I see you over there. You need to unmute.
                                                                     Mr. WAINWRIGHT. Yes, I am not sure I fully understand the ques-
                                                                  tion. Can you——
                                                                     Mr. DEFAZIO. Well, you concluded, the private sector versus pub-
                                                                  lic sector, and you are doing these comparative studies. In aggre-
                                                                  gate, is there any way—can we say—it is a small percentage of the
                                                                  work, overall, in the public programs? What percent is it where the
                                                                  public programs with DBE aren’t—how much smaller is that?
                                                                     Mr. WAINWRIGHT. Oh, sure. I think I understand now, sorry.
                                                                     Mr. DEFAZIO. Yes.
                                                                     Mr. WAINWRIGHT. The public sector, as a share of the overall
                                                                  economy, is maybe 20 percent. The DBE program and programs
                                                                  like it throughout the country are, you know, to some degree, a fin-
                                                                  ger in the dike. You don’t see these programs very much at all in
                                                                  the private sector. So you have got the DBE program and programs
                                                                  like it, trying on their own, largely, to remedy discrimination and
                                                                  remediate discrimination, with only 20 percent of the economic ac-
                                                                  tivity to work with. The other 80 percent remains practically un-
                                                                  touched.
                                                                     Mr. DEFAZIO. Great. That is what I was looking for. I didn’t
                                                                  know what the comparison was. So 20/80, and then we get a frac-
                                                                  tion of the 20. So——
                                                                     Mr. WAINWRIGHT. That is correct.
                                                                     Mr. DEFAZIO. Thanks.




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                                                                     To anybody else, I have got about 1 minute left. Anybody else
                                                                  want to expand on their remarks for about 1 minute?
                                                                     [No response.]
                                                                     Mr. DEFAZIO. OK, I am not hearing anybody.
                                                                     Oh, go ahead.
                                                                     Ms. LERDAHL. I would just like—this is Mary Lerdahl again—I
                                                                  would just like to reiterate the importance of waivers, and the ef-
                                                                  fect that they have on hurting DBE firms that, while they may
                                                                  have enjoyed some success within the DBE group, they are still far
                                                                  from being ready to be kicked out or graduated from the program.
                                                                     I think also that in Washington, the waiver that was enacted to
                                                                  exclude White women actually really separated the DBE commu-
                                                                  nity, and actually pit one group against the other, which, of course,
                                                                  you know, it is the last thing that we need. We want to bring DBE
                                                                  communities together. And they are—you know, just by the num-
                                                                  bers of statistics, there will always be one group that is going to
                                                                  do better in any particular data segment than another. But overall,
                                                                  the DBE community still is just getting pennies of the Federal
                                                                  highway dollar.
                                                                     So I would like to submit that the committee consider that waiv-
                                                                  ers should never be enacted against one group or another. They are
                                                                  very destructive, and they are not necessary. In our State of Wash-
                                                                  ington, because we were covered by the Ninth Circuit District for
                                                                  court decisions, I realize that the State of Washington had the op-
                                                                  portunity to ask for a waiver, but it was not required that they
                                                                  seek a waiver. And that is an important distinction that I hope
                                                                  that the committee would perhaps consider writing into the reen-
                                                                  actment, that never again that waivers would waiver out one group
                                                                  in the DBE community against the other. Thank you.
                                                                     Mr. DEFAZIO. OK, thanks for that observation. Now I would turn
                                                                  to Ranking Member Graves for his questions.
                                                                     Oh, no. He’s not there. It would be Representative Weber who
                                                                  will ask.
                                                                     Mr. WEBER. Thank you, Mr. Chairman. I have questions for
                                                                  Farad Ali, and I am not sure how we get him up on the screen.
                                                                  I guess we look to whoever the speaking part is.
                                                                     Mr. Ali, does the DBE program assist minorities in attaining fi-
                                                                  nancing?
                                                                     Mr. ALI. Thank you for your question. I have been also the execu-
                                                                  tive director of the Small Business Transportation Resource Cen-
                                                                  ters that is through your NCDOT funding. In that program, part
                                                                  of the milestones are to provide technical assistance and access to
                                                                  capital, or resources for them to get that access to capital. But the
                                                                  program doesn’t actually provide the financing. You have to go out
                                                                  and find sources.
                                                                     I will tell you in my work I have seen that we have had to go
                                                                  out and find specialized—or people of color or women to support
                                                                  this group, to help them, to show a duty of care, to make sure they
                                                                  can get the financing and the bonding necessary to participate on
                                                                  roadside projects, as well as the ACDBEs. So you also do see some
                                                                  institutional discrimination in that work, from allowing people to
                                                                  show duty of care and helping others.
                                                                     Mr. WEBER. Are you able—when that happens, do you have a
                                                                  matrix? Are you able to track how—from each project or each com-




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                                                                  pany, how good it went, what the pitfalls were, and how to improve
                                                                  upon that?
                                                                     Mr. ALI. Yes, thank you. Great question again, Congressman. In
                                                                  our program, what we would do is look at some of the ways that
                                                                  we—weaknesses in the DBEs, or that we may see that are impor-
                                                                  tant. We find ways to strengthen it, if it is on asset base, or if it
                                                                  is credit, or whatever it may be, to help them to get the financing.
                                                                     Again, the financial system has not always treated ACDBEs or
                                                                  even DBEs fairly.
                                                                     And it is hard to speak to this, because I know in the banking
                                                                  system or the financial system, there are rules of the way people
                                                                  operate. But it is also the ways that people have culture in allow-
                                                                  ing people to feel like they can have opportunity.
                                                                     So we do measure, when people actually look for financing oppor-
                                                                  tunities, figure out ways to help them to overcome any obstacles,
                                                                  and then success in getting them financing or bonding needed to
                                                                  meet the requirements of the project.
                                                                     The answer is yes.
                                                                     Mr. WEBER. OK, that is good to know. And then I am going to
                                                                  jump over to Ms. Sandra Norman, if I may.
                                                                     Ms. Norman, what would you say, in your experience, is the big-
                                                                  gest obstacle to increasing minority participation in transportation-
                                                                  related projects in your State?
                                                                     Ms. NORMAN. I would say, as you just talked about, access to
                                                                  capital. The other part, too, is the—how we procure projects, mak-
                                                                  ing sure that our DBEs have the opportunity on the design side of
                                                                  the house, as well as the construction side of the house, so making
                                                                  sure that we do set aside some smaller bundle of projects so that
                                                                  the small business DBEs will have the opportunity to compete and
                                                                  win contracts. We just don’t want them to compete for it, we want
                                                                  them to be awarded the contract, and be successful in carrying it
                                                                  out from beginning to end, making that project a win-win for both
                                                                  the DBE and for the DOT.
                                                                     Mr. WEBER. So, as kind of a follow up, I guess, with my question
                                                                  with Mr. Ali, do you have a process, Ms. Norman, with the way you
                                                                  are doing it?
                                                                     I mean, is there a hotline for help set up? Do you encourage par-
                                                                  ticipation? Do you reach out and get feedback from them, I guess?
                                                                     Ms. NORMAN. Just like Mr. Ali, we do have what we call the
                                                                  BOWD Center, the Business Opportunity Workforce Development
                                                                  Center. It is through a supportive services program. We do provide
                                                                  technical assistance. And one of the things that I do, I do a lot of
                                                                  outreach, a lot of networking through different entities, through
                                                                  different partnerships with State, local programs, so that our DBEs
                                                                  will have that opportunity.
                                                                     But sometimes the requirements for our DBEs are stricter and
                                                                  harder for them to have that level playing field with regards to ac-
                                                                  cess to capital.
                                                                     But to your point, yes, we do provide technical support and as-
                                                                  sistance, make sure that we do have partnership opportunities for
                                                                  our DBEs.
                                                                     Mr. WEBER. Well, thank you for that.
                                                                     I have been kind of setting the stage for you, Ms. Lerdahl. You
                                                                  are the last one up. I am quickly getting close to my time, and I




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                                                                  appreciate the chairman’s indulgence. Since you have run a com-
                                                                  pany, Ms. Lerdahl—you have heard the panelists, especially the
                                                                  last two that I have had questions for—from your business experi-
                                                                  ence, would you be able to give them suggestions—maybe you want
                                                                  to hire on as a consultant, I don’t know, but would you be able to
                                                                  give them suggestions on how to better help these companies suc-
                                                                  cessfully compete on these jobs?
                                                                    Ms. LERDAHL. Yes, thank you. Well, I do think they touched on
                                                                  the importance of access to capital. I will state that, in the 9 years
                                                                  I was in business, I was never able to obtain a line of credit, except
                                                                  for the one project that was provided through the Small Business
                                                                  Transportation Center. I was able to get a $250,000 line of credit
                                                                  to do one particular project. So that really did help. But the rest
                                                                  of my work, $80 million worth of work, was done without a line of
                                                                  credit. So I became a really good bill collector; otherwise, I couldn’t
                                                                  pay.
                                                                    I do think, too, there is definitely, not only in the banking seg-
                                                                  ment, discrimination against small business, and particularly
                                                                  women- and minority-owned businesses, but also with creditors. I
                                                                  was not able to get the pricing on big loads of material—$500,000
                                                                  pull orders, for example—that my larger contracting competitors
                                                                  could.
                                                                    So—and there was a few times I tried to pursue collusion within
                                                                  the supplier network, and that was a very difficult thing to prove,
                                                                  because, of course, if they are not going to bid to you, how can you
                                                                  prove that they are stacking the deck against you?
                                                                    I do think that there is also evidence of supplier fraud, where
                                                                  even, unfortunately, DBE firms that are a supplier up the pricing
                                                                  of a package of materials on bid day to a non-DBE electrical firm
                                                                  or other firm in order to win the bid, because they can count 60
                                                                  percent of that billable material. So that, again, stacks against
                                                                  DBEs. It is almost the DBE supplier working against the DBE con-
                                                                  tractor.
                                                                    And so there is a lot of games that get played in the supplier
                                                                  DBE industry, unfortunately, as well as access to credit in both the
                                                                  suppliers and the banking forums.
                                                                    Mr. WEBER. Well, thank you for that. It sounds like you would
                                                                  be a good resource for the other folks on the panel on working on
                                                                  some of the pitfalls that a lot of these business owners see.
                                                                    So I appreciate your indulgence, Madam Chairwoman. I yield
                                                                  back.
                                                                    Ms. NORTON [presiding]. I thank my good friend, and I recognize
                                                                  myself for the next series of questions.
                                                                    I think I want to start with Ms. Williams and Ms. Boyer, because
                                                                  I am interested in why this discrimination continues to occur.
                                                                    Now, you would have the same ability, even more experience, if
                                                                  the DBE program went away. So I would like you to elaborate on
                                                                  why you think opportunities for small businesses like yours would
                                                                  dry up—you all seem to have testified to that effect—without the
                                                                  DBE program. I am trying to find whether there is a real remedy
                                                                  here that is lasting.
                                                                    For example, do you think that these contracts are based on per-
                                                                  sonal relationships that these companies have? Is it based on the
                                                                  size they prefer, larger companies? Is it based on the nature of the




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                                                                  competition? Indeed, are they competed? I am trying to get at the
                                                                  cause of what you have—virtually, all of you have—elaborated as
                                                                  continuing discrimination, notwithstanding the DBE program.
                                                                     So I will start with Ms. Williams.
                                                                     Ms. WILLIAMS. Thank you so much. I think that one of the unin-
                                                                  tentional consequences of the DBE program is that the program is
                                                                  set up to invite and encourage the checkbox. In other words, you
                                                                  have to check the box [inaudible] so in large majority firms, and
                                                                  the goal is 25 percent, I am looking for a DBE, and I check the box.
                                                                  If I am a large, majority firm, I am trying to get 40—50 to 60 per-
                                                                  cent of the project. And so, I have got to give out 25. I mean it is
                                                                  all in the numbers.
                                                                     And so I think if you graduated or you weren’t a DBE, they
                                                                  would not pick you as just a good engineering company. [Inaudi-
                                                                  ble.] So it is an unintentional consequence that the DBE program
                                                                  has developed. But it is what it is.
                                                                     Ms. NORTON. Ms. Boyer, do you have any views on this?
                                                                     Ms. BOYER. Yes, of course. So thank you for the question.
                                                                     Excluding the city that I live in and I am headquartered in,
                                                                  Belleville, Illinois, they give us work because we are right here in
                                                                  their community, serving their needs, going the extra mile all the
                                                                  time. And we do excellent work. And it doesn’t matter if I am a
                                                                  DBE here, because this is where I work, and they know me. So I
                                                                  think a lot of it has to do with relationships, although it is also
                                                                  about the culture of our Nation.
                                                                     And so, even though I work with large engineering firms, and we
                                                                  give work back and forth all the time, I think for us in Illinois it
                                                                  has more to do with—the Illinois Department of Transportation
                                                                  really emphasizes that they want DBEs to succeed, and they want
                                                                  prime firms to be giving DBEs chances to lead. And they know the
                                                                  only way that they are going to win the work is to work with
                                                                  DBEs, because that is what the State wants.
                                                                     So it is all about winning. It is all about getting a leg up. And
                                                                  if a firm thinks that they are going to have a better chance to win
                                                                  with a DBE, then we are great. Even if we do fantastic work, they
                                                                  won’t use us if they don’t have to, because it is all about winning
                                                                  the most. It is all about this individual culture that we have in the
                                                                  U.S., that the more for me, the better. And the only way people are
                                                                  going to share is if they are made to share. I hate to say it.
                                                                     Ms. NORTON. Interesting to note, and it says a lot about the im-
                                                                  portance of continuing this program, because you would think,
                                                                  automatically, these firms, women- and minority-owned firms,
                                                                  would work their way into the industry.
                                                                     Ms. Lerdahl, I must say, your story was particularly chilling to
                                                                  me, about the problems of women business owners. And I am try-
                                                                  ing to find out the difference between waivers and graduation from
                                                                  the program. I am confused on that. What is your response for
                                                                  those who believe that the program should exclude automatically
                                                                  certain groups, once they have attained what is known as parity
                                                                  in the market?
                                                                     Ms. LERDAHL. Well, thank you for that question. It is a great
                                                                  one.
                                                                     First, a big difference between graduating and the waiver. The
                                                                  waiver sought to exclude White women as a result of a disparity




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                                                                  study. It, again, had some unusual data in it, with these two big
                                                                  mega-projects, where billions of dollars of contracts with multiple
                                                                  years of work were counted in that 2009 to 2011 study data period.
                                                                     Other firms—ironically, the two biggest firms in our State—one
                                                                  is Valley Electric, one is Elcon Electric—both used to be DBE
                                                                  firms, but they were allowed the time and the length of the runway
                                                                  to grow, and to graduate from the program. Elcon is owned by an
                                                                  African-American gentleman, and Valley Electric was a women-
                                                                  owned majority business. But they had——
                                                                     Ms. NORTON. They are not in the program any longer, those two
                                                                  firms?
                                                                     Ms. LERDAHL. Yes, they graduated from the program.
                                                                     Ms. NORTON. Yes, OK.
                                                                     Ms. LERDAHL. But in the case of a waiver, we were essentially
                                                                  kicked out by our own agency because of the disparity study data
                                                                  that indicated that White women were getting more than our share
                                                                  of the DBE dollar, which is absolutely not true. So my company
                                                                  barely got [inaudible] and started to do great projects, like the 520
                                                                  bridge, and then I was completely cut off at the knees.
                                                                     And I would also share what the other ladies talked about, not
                                                                  getting work without there being a condition of award. I bid—from
                                                                  the time the waiver was enacted in June of 2017, I bid hundreds
                                                                  of projects. I pulled out every networking—I begged, I pleaded. I
                                                                  mean, I had never not finished a job on time or ahead of schedule.
                                                                  I had done multiple millions of dollars’ worth of work, never with
                                                                  a problem. And I could not get a single job. But that is because dis-
                                                                  crimination is even more real than I thought.
                                                                     Now, I have been in business for 22 years. I had a great reputa-
                                                                  tion in the community, and not only as a DBE firm, but as an elec-
                                                                  trical contractor. I had been in business for 10 years prior to start-
                                                                  ing my own firm, in a non-DBE firm. I knew everybody. Everybody
                                                                  knew me. But I couldn’t get one job to save my company, and that
                                                                  is why my company died a death of 1,000 cuts over 18 months, $9
                                                                  million a year to [inaudible].
                                                                     Ms. NORTON. Thank you. My time has expired. I do note that you
                                                                  cited two firms that had graduated from the program. I would hope
                                                                  that, if we have this hearing again, we will invite at least one firm
                                                                  that has graduated from the program, so that we can learn about
                                                                  what the program does for people to put them on their own. I think
                                                                  that would have added a great deal to this hearing.
                                                                     I am pleased now to recognize Representative Davis.
                                                                     Mr. DAVIS. Thank you, Madam Chair, and thanks again to all
                                                                  the witnesses.
                                                                     Ms. Boyer, I heard that Mr. Bost did a fine job with your intro-
                                                                  duction while I was absent.
                                                                     Ms. BOYER. Yes.
                                                                     Mr. DAVIS. I do want to start my question with you. Based on
                                                                  your experience, do you believe that a mentorship program between
                                                                  prime contractors and your company, like your company,
                                                                  Kaskaskia Engineering Group, would have been helpful to you
                                                                  when you first became a business owner?
                                                                     Ms. BOYER. Obviously, the mentor programs are so beneficial in
                                                                  getting started, and even just getting into different forms of work.




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                                                                  So I have actually participated with mentor programs in both engi-
                                                                  neering and on the contracting side.
                                                                     The problem with mentor programs is it takes a lot of adminis-
                                                                  tration, both by the companies and by the agency. So often the fol-
                                                                  lowup and making sure that it is really happening falls through
                                                                  the cracks, because people are short-staffed and they are just too
                                                                  busy. But mentorships do work when there is enough staff to make
                                                                  it work.
                                                                     Mr. DAVIS. Great. Great to hear that. Another question for you.
                                                                     Has either the DBE program’s personal net worth or the gross
                                                                  receipts limitation factored into your decisionmaking when consid-
                                                                  ering new business opportunities?
                                                                     Ms. BOYER. Absolutely. It is a strategy. I know right now that
                                                                  I could not survive if I graduated out of the DBE program right
                                                                  now. My foundation is not deep enough. And so, yes, it has every-
                                                                  thing to do with the decisions that I make. I need to stay in the
                                                                  program right now, because I have 45 mouths to feed here.
                                                                     Mr. DAVIS. Would you be more interested in getting off, making
                                                                  more dollars available, if there was a better off-ramp to move to-
                                                                  ward self-sufficiency?
                                                                     Ms. BOYER. Absolutely. I mean, one of the things that I actually
                                                                  looked at with a firm in Minnesota as they were graduating out of
                                                                  the program is to form a joint venture with them, a joint venture
                                                                  company, in a sense, that would go after Federal work there, and
                                                                  share the work, me being a DBE, but giving them, like, 40 percent
                                                                  of it to kind of pad them as they graduated out of the program, and
                                                                  built and sustained themselves.
                                                                     In the end, we couldn’t come up with an agreement. And I think
                                                                  that there are a lot of problems right now with staffing engineers.
                                                                  There is a huge shortage. And I think the close relationship scared
                                                                  them, that their people might like our firm better, and have some
                                                                  people move over. So they decided not to do it with us.
                                                                     But I think that just the exercise of looking at how can you sta-
                                                                  bilize a firm as they jump out of the program, and teaming with
                                                                  another DBE to share work back and forth could lift both firms. So
                                                                  I think there are a lot of opportunities there.
                                                                     Mr. DAVIS. You know, it is great to hear, and that the program
                                                                  has been so successful for companies like yours. But I think some
                                                                  of the things you just mentioned, Ms. Boyer, could make the pro-
                                                                  gram better. And we look forward to working with you on those
                                                                  issues.
                                                                     I know that this program has meant a lot for you and your com-
                                                                  pany. We heard about that in your opening statement. And I just
                                                                  wanted to give you another chance. Is there anything that you
                                                                  haven’t yet said about this having an impact on you and your life
                                                                  that you would like to mention to us in the committee?
                                                                     Ms. BOYER. Well, you certainly would never see a mother-daugh-
                                                                  ter engineering firm. And this program has made that available.
                                                                     Mr. DAVIS. Well, that is wonderful.
                                                                     Ms. BOYER. I also do want to say that this idea of a unified cer-
                                                                  tification is so important. And, you know, we have a lot of stuff
                                                                  going on in the United States right now. We have the DBE pro-
                                                                  gram, but we also have a lot of people trying things. Our utility




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                                                                  companies are trying to come up with their own DBE programs,
                                                                  and they have separated out women and minorities.
                                                                    And so, you know, when I would work in 7 States, I have to get
                                                                  17 different certifications. And it just seems that we are far enough
                                                                  along in our electronic world that we could have one place, one re-
                                                                  pository, and that we could certify DBEs in categories of women or
                                                                  minorities, so that everybody doesn’t have to do the same thing
                                                                  over and over and over. It takes one full staff member of mine to
                                                                  just keep up with this.
                                                                    So I think it can be simplified, but it takes our agencies to trust
                                                                  each other. And the Small Business Administration does a great
                                                                  job. They are the perfect candidate for something like that.
                                                                    Mr. DAVIS. That is another great idea. Look, we know—and we
                                                                  see the emotion that you have shown us—how much of an impact
                                                                  this has had in your life. Thank you for being here. I look forward
                                                                  to seeing you in person again soon.
                                                                    And I yield back the balance of my time.
                                                                    Ms. NORTON. The gentleman has yielded. I must say I was very
                                                                  touched to hear the testimony about a mother-daughter engineer-
                                                                  ing firm. I mean, typically, we see businesses like this passed on
                                                                  to sons. The notion that you had that effect within your family is
                                                                  telling about the importance of this program. I appreciated that,
                                                                  hearing that, very much.
                                                                    We will next hear from Representative Larsen.
                                                                    You are recognized for 5 minutes.
                                                                    Mr. LARSEN. Thank you. I have a question for Mr. Ali.
                                                                    It is clear the pandemic continues to have a significant impact
                                                                  on the U.S. aviation industry, particularly on airport conces-
                                                                  sionaires. Even more concerning is the fact that minority-owned
                                                                  small businesses are disproportionately impacted by the effects of
                                                                  the pandemic. Could you cover for us how the pandemic has af-
                                                                  fected AMAC members and airports, concessions, disadvantaged
                                                                  business enterprises?
                                                                    Mr. ALI. Yes, thank you, Congressman. It is really important to
                                                                  understand the process of how these work. You look at an airport—
                                                                  I look at it, really, as a hotel—and big concessionaires, which are
                                                                  mainly foreign-owned, secure pieces of the airport to be able to pro-
                                                                  vide services for their passengers.
                                                                    And as you have heard earlier, a lot of the DBEs, the status of
                                                                  DBE allows for them to partner with other minority- and women-
                                                                  owned firms. And many of these concessionaires, these large con-
                                                                  cessionaires, look for women- and minority-owned firms to partici-
                                                                  pate, and that is how they get a pathway into being conces-
                                                                  sionaires, either from streetside to airports, or even beginning new
                                                                  businesses.
                                                                    A lot of the investment, the investment for these airports to, as
                                                                  you could see, the—improvements inside of the airport are shared
                                                                  cost by DBEs. So they are making investment in public assets
                                                                  based on a contract for 5, 7, or 10 years, and they have to pay
                                                                  those loans back, typically, to their master concessionaire.
                                                                    So when you have the COVID crisis, which took down 90 percent
                                                                  of the travel, a lot of these ACDBEs are now having to still make
                                                                  payments which are not being received. And because they made
                                                                  them in public assets, they can’t get traditional funding, which is




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                                                                  really hard, because then, if you can’t get traditional funding from
                                                                  a bank, there is no way you could refinance or restructure your
                                                                  loan. And as a result, you find yourself in a cataclysm of debt, of
                                                                  not only business debt from the pandemic, but business debt from
                                                                  being able to pay back your loan.
                                                                     So not being able to get access to the PPP, it didn’t help these
                                                                  businesses, ACDBEs. And some of them weren’t able to get the
                                                                  EIDL loan, because the EIDL loan, which was once at $2 million,
                                                                  went down to $150,000. But a lot of these businesses needed the
                                                                  EIDL loan so that they could continue to cooperate and manage in-
                                                                  side of these airports.
                                                                     So you find a lot of the concessionaires are in default, which
                                                                  means they are in a position where they could be eliminated from
                                                                  these contracts that they needed, and whatever assets they had
                                                                  tied up would be lost.
                                                                     Mr. LARSEN. Yes. And what effect would large-scale closures of
                                                                  the concessionaires have on airport operations?
                                                                     Mr. ALI. It would do a whole lot of things for airport operations,
                                                                  thanks for the question.
                                                                     If you look at these ACDBEs or these DBEs that would be elimi-
                                                                  nated from contracts, they will lose these opportunities. You will
                                                                  have societal impacts to them where these communities that look
                                                                  to these DBEs for support or hiring, so they would lose all of these
                                                                  employees. These employees would lose houses.
                                                                     I mean, the trickle-down effect of ACDBEs going out of business
                                                                  or DBEs going out of business, please note if you look at some of
                                                                  the statistical analysis, most DBEs hire people of color or women
                                                                  than any other constituency groups. So when they go out of busi-
                                                                  ness, it has a real trickle-down effect into either of the communities
                                                                  and the airport community.
                                                                     Mr. LARSEN. Yes, thank you.
                                                                     A question for Mr. McDonald. So, Mr. McDonald, I am the chair
                                                                  of the Aviation Subcommittee and certainly acutely aware of the
                                                                  lack of diversity in U.S. aviation and the need to attract new talent
                                                                  to ensure this industry remains competitive.
                                                                     In the time I have remaining, which is about 1 minute, I think,
                                                                  can you discuss some of the successful initiatives that you have im-
                                                                  plemented within the DBE program that have attracted more par-
                                                                  ticipation from women- and minority-owned firms, particularly re-
                                                                  lated to aviation?
                                                                     Mr. MCDONALD. Yes, I would say that through our community
                                                                  partners—again, I am with the Office of Economic and Small Busi-
                                                                  ness Development, and because of that we have community part-
                                                                  ners. We have a group called the Greater Fort Lauderdale Alliance
                                                                  that works with the attraction and the retaining of businesses in
                                                                  our county.
                                                                     And through that group, we also have a cohort of aviation type
                                                                  businesses, but from education and training and apprenticeship, we
                                                                  have been able to create a collaboration where we attract not only
                                                                  those businesses, but we engage those business opportunities, and
                                                                  we align that with our DBE program.
                                                                     So our upside is by being an economic development office, also
                                                                  operating the Small Business Program, also by administering the
                                                                  Federal program, we leverage our resources and our partnerships.




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                                                                    And, again, that is one of our saving graces. The idea that we
                                                                  also have an aviation director who is supportive of the program.
                                                                  We have education and institutional organizations that are willing
                                                                  to commit their resources, and this becomes, as you can imagine,
                                                                  attractive to the business community who recognizes your growth
                                                                  and your opportunity.
                                                                    Because, as you know, businesses always speak to do I have ac-
                                                                  cess to that employee, to that individual who has the skill set as
                                                                  well as the interest?
                                                                    So it is through our collaboration and our partnerships that we
                                                                  have been able to have some success in growing the businesses,
                                                                  which also introduced opportunities for our DBEs to participate.
                                                                    Mr. LARSEN. That is great. That is really helpful. I appreciate
                                                                  that.
                                                                    And according to my personal timer, I am out of time, and I will
                                                                  yield back.
                                                                    Thank you, Mr. McDonald.
                                                                    Ms. NORTON. I note this term ‘‘trickle-down effect.’’ It seems to
                                                                  me that is very important to hear. We are talking about engineer-
                                                                  ing, where minorities and women have not participated in nearly
                                                                  the numbers they do in other professions.
                                                                    So the notion that this encourages minorities and women to even
                                                                  enter the profession, it seems to me, should be encouraging to this
                                                                  committee.
                                                                    I am pleased to recognize Representative Woodall at this time.
                                                                    Mr. WOODALL. Thank you very much, Madam Chair.
                                                                    I wanted to start with Dr. Wainwright. I appreciated his likening
                                                                  our challenges to blood pressure medication, and we certainly do
                                                                  not want to end the blood pressure medication.
                                                                    I wanted to find out, Dr. Wainwright, if you saw anything in
                                                                  your research that helped us on the pathway to a cure. I have
                                                                  heard lots of concerns about graduating from the program. I have
                                                                  heard lots of concerns about the impact of categorical exclusions.
                                                                    At the end of the day, the DBE program was intended to be a
                                                                  step towards a cure. Do you see anything that could help us alter
                                                                  the program in ways that alleviate some of the fears of graduation
                                                                  and bring us closer to that societal cure?
                                                                    Mr. WAINWRIGHT. Thank you, Representative.
                                                                    A couple of things. One is I am not a policy guy as much as a
                                                                  statistical guy. So I am not sure I can speak about what detailed
                                                                  improvements in the DBE program might get to the cure, as you
                                                                  are mentioning.
                                                                    But as Chairman DeFazio mentioned at the beginning, one of the
                                                                  touchstones for me would be to see greater spillover of efforts like
                                                                  the DBE program, like the State and local MWBE programs, into
                                                                  the private sector, which, as I mentioned, is about 80 percent of the
                                                                  economic activity.
                                                                    So the DBE program at its best is affecting a fraction of 20 per-
                                                                  cent that the public sector controls and, you know, still more, we
                                                                  are talking today just about the transportation sector.
                                                                    In the 37 years that the program has been in effect, we are start-
                                                                  ing to see some of that, but it is still a long, long way off. When
                                                                  I started working on this in 1989, you never heard of the term




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                                                                  ‘‘supplier diversity officer’’ at a public agency, let alone a private
                                                                  agency.
                                                                     So there is a demonstration effect, I think, to see and then to
                                                                  witness the positive effects that this program has on many of the
                                                                  witnesses you have here today, business owners.
                                                                     Hopefully, that has a demonstration effect into the private sector
                                                                  and will encourage more private companies to diversify their sup-
                                                                  ply chains and their contracting and procurement chains.
                                                                     And when that day comes, I may be getting off my blood pres-
                                                                  sure medicine at some point down the road from that. So that is
                                                                  a great question. Thank you.
                                                                     Mr. WOODALL. I thank you for that, Dr. Wainwright.
                                                                     I think it was Ms. Norman who mentioned that one of the side
                                                                  effects of that blood pressure medication could just be creating a
                                                                  check box program.
                                                                     Ms. Norman, I kind of heard that from Ms. Lerdahl’s testimony,
                                                                  that she had done amazing work, built amazing relationships, and
                                                                  as soon as she was excluded from the program, all of that hard
                                                                  work disappeared because those folks were not prioritizing her re-
                                                                  lationships or her quality work. They were focused on getting that
                                                                  check box done.
                                                                     Could you speak a little bit more about your concern that it is
                                                                  turning into a check box program and maybe some ideas about how
                                                                  we can solve that so that these relationships and these good work
                                                                  ethics can be continued?
                                                                     Ms. NORMAN. So while I do not want to just say it is a check
                                                                  box—in essence, it is—but without it, sir, they would not get these
                                                                  opportunities.
                                                                     So it is very important to have that, to have these demonstrated
                                                                  goals requirements, not just an aspiration, but a requirement to
                                                                  make sure that part of the process that the DBEs and women-
                                                                  owned businesses get that fair opportunity to bid and compete and
                                                                  win those contracts.
                                                                     The other part that can assist with that as Virginia, we have
                                                                  what they call the Virginia Small Business Enterprise Program,
                                                                  and that allows us to de-bundle some of these contracts on the con-
                                                                  struction side of the house and the professional services side of the
                                                                  house, $750,000 or less or up to $1 million, looking at those
                                                                  projects to see for a subcontractor to then step into the arena of
                                                                  being a prime.
                                                                     So a lot of times these larger businesses forget that they started
                                                                  out as a small business as well.
                                                                     However, we have been fortunate on the construction side of the
                                                                  house. We still have some work to do on the professional services
                                                                  side of the house of identifying those kinds of projects.
                                                                     So while we say it is a check box, without that check box these
                                                                  small businesses and women-owned businesses would not have
                                                                  that opportunity.
                                                                     Ms. NORTON. Well, thank you.
                                                                     Mr. WOODALL. I certainly recognize to Chairwoman Norton’s
                                                                  point. When we have our next hearing on this topic, it hurts to
                                                                  hear the fears of graduating from the program. Graduation should
                                                                  be something that we are aspiring to.




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                                                                     But I hope we will be able to make some changes and explore
                                                                  some ways to make them a more comfortable transition.
                                                                     Chairwoman, thank you for your indulgence. I yield back.
                                                                     Ms. NORTON. I thank the gentleman for his questions.
                                                                     We hear next from Representative Sires.
                                                                     Mr. SIRES. Thank you, Ms. Norton.
                                                                     And thank you for the people that are giving testimony today. It
                                                                  is very important.
                                                                     Mr. Ali, thank you very much. My question will be directed to
                                                                  you.
                                                                     I represent a portion of the Newark Airport with my colleague,
                                                                  Don Payne. We both represent the airport. You have said that
                                                                  without the Disadvantaged Business Enterprise programs some of
                                                                  the contracting opportunities for minorities are gone.
                                                                     Well, as you know, Newark Airport, the new terminal 1 is being
                                                                  built, and they are probably now going through the process of se-
                                                                  lecting bids. I am hopeful that minority women-owned businesses,
                                                                  minority-owned Black businesses, and minority Latino businesses
                                                                  get to participate in this process and are able to secure some of
                                                                  these bids.
                                                                     Would you know what percentage of minority women and Latino-
                                                                  owned businesses currently represent airport concessions across
                                                                  the country?
                                                                     Mr. ALI. No, sir, I do not have that answer. That is something
                                                                  the fiscal guy can tell you, the doctor. I do not have all of those
                                                                  stats.
                                                                     Mr. SIRES. So you would not know anything about New Jersey
                                                                  either, right?
                                                                     Mr. ALI. No, sir, I am sorry. Not about specific or, I mean, in
                                                                  general, no, sir.
                                                                     Mr. SIRES. Well, I think it would help if there would be some
                                                                  data about how many minority businesses are participating in
                                                                  these airports because we do not know if there are enough or there
                                                                  are too many or there are not enough.
                                                                     Mr. ALI. Yes, sir.
                                                                     Mr. SIRES. So I do not know who would put those statistics to-
                                                                  gether.
                                                                     Mr. ALI. Yes, sir, Congressman. I believe that the FAA should be
                                                                  able to provide you with that information, sir, as well as the DOT
                                                                  Office of Civil Rights.
                                                                     Mr. SIRES. So I am going to get my staff on that because I am
                                                                  very concerned that this new wing that we have in Newark, this
                                                                  terminal 1, that the minorities get their fair share of concessions
                                                                  in that new wing.
                                                                     Mr. ALI. Yes, sir.
                                                                     Mr. SIRES. What role do you think that the DBE program plays
                                                                  in the recovery of businesses like yours with this pandemic? How
                                                                  has that impacted?
                                                                     Mr. ALI. Sir, the businesses that we represent I will tell you that
                                                                  COVID has adversely affected businesses in that they have been
                                                                  able to have to deal with it. Most of the contracts for ACDBEs have
                                                                  been secured against contracts with the airports, and those airports
                                                                  have used contracting to get rents, and those rents and those pay-




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                                                                  ments all go to pay for bonding and other things inside of the air-
                                                                  port and aviation business.
                                                                    So when you have a slowdown in traffic and those ACDBEs are
                                                                  no longer able to get passengers to pay the facility charges or the
                                                                  costs, it becomes a really critical role of making sure that we have
                                                                  the ACDBEs involved, but they also lose out when the airport in-
                                                                  dustry is inhibited by the lack of passengers.
                                                                    Mr. SIRES. And have you noticed where there is big investment
                                                                  in airports across the country where the minority businesses are
                                                                  able to take part after such investments in some of these airports,
                                                                  or do you feel that maybe they are cast out some places?
                                                                    Mr. ALI. Yes, thank you. That is a really good question.
                                                                    I do believe that you have offered, in your funding to these air-
                                                                  ports, you have offered the opportunity for them to share that with
                                                                  their concessionaires and the ACDBEs. It is my understanding that
                                                                  each airport has the authority to make a determination of how
                                                                  much they will share or if they will share.
                                                                    I think each area would need to be audited for that particular
                                                                  concern. So if you are interested in New Jersey and New York, I
                                                                  think you should ask if the resources that you provide for them,
                                                                  how much of that were they able to share with the ACDBEs.
                                                                    Mr. SIRES. Yes, I am concerned about New Jersey and New York,
                                                                  but quite frankly, I am concerned about the rest of the country also
                                                                  because there is big investment in some of these airports, and I
                                                                  would like to see minority-owned business not be cast out because,
                                                                  well, you know how it works.
                                                                    Mr. ALI. We have heard from our members that there has not
                                                                  been shared prosperity with those resources. Those resources have
                                                                  not necessarily been shared.
                                                                    So members have asked airport directors and airport authority
                                                                  members to share and find resources. I know of a particular case
                                                                  out West where an ACDBE constituency group was concerned that
                                                                  a major airport got a lot of resources, but those resources have not
                                                                  been shared.
                                                                    As a result, there has been a multimillion-dollar business that
                                                                  may have to come back to the city council and ask for additional
                                                                  funding because the airport did not share in the resources to help
                                                                  them stay in business.
                                                                    Mr. SIRES. Well, if I can ever be of service.
                                                                    Ms. NORTON. Thank you very much.
                                                                    Mr. SIRES. Thank you.
                                                                    Ms. NORTON. The next question is from Representative Carol
                                                                  Miller.
                                                                    Mrs. MILLER. Thank you, Acting Chairwoman Norton.
                                                                    With some of your comments that you made earlier, the thought
                                                                  came into my mind about how grateful I am that over the last few
                                                                  years our educators are focusing more on STEAM and STEM edu-
                                                                  cation, which will give the opportunity to all our children, the little
                                                                  girls, the minority children, the opportunity to learn what they
                                                                  need in order to have some of these businesses, like mother-daugh-
                                                                  ter engineering.
                                                                    And thank you all, all of you, for being here today as witnesses.
                                                                  I am grateful for the opportunity to hear from the stakeholders




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                                                                  that do represent DBEs and ACDBEs. The initials are still kind of
                                                                  hard for me.
                                                                     As these organizations attempt to cultivate their businesses, it is
                                                                  important that we continue to monitor discrimination so that we
                                                                  can continue to build and expand on this program to allow for fair
                                                                  and equal opportunities to have access.
                                                                     Mr. Ali, could you please speak about the difference between di-
                                                                  rect and indirect discrimination and what your suggestions would
                                                                  be so that we could ensure that minority-owned businesses are
                                                                  properly represented?
                                                                     Mr. ALI. Yes. Thank you, Congresswoman.
                                                                     I think it is important that you strengthen the program in the
                                                                  way that you evaluate it and open up opportunities.
                                                                     Direct discrimination is organizations making the determination
                                                                  that they really are not going to have inclusion. They say they will
                                                                  have inclusion.
                                                                     I will tell you an example of the time I was in an airport direc-
                                                                  tors’ meeting, and someone indicated that they were going to do
                                                                  maybe 5 percent with minorities and try to do another 5 percent
                                                                  to get to the 10 percent.
                                                                     And I indicated back with them at the meeting, well, then maybe
                                                                  we will try to sign your contract.
                                                                     The attitudes change really quickly. Within 48 hours they were
                                                                  able to attain the other 5 percent to make sure they had the 10
                                                                  percent.
                                                                     So to really enforce the utilization of good faith effort at inclusion
                                                                  is going to be important.
                                                                     Some of the other issues around institutional discrimination are
                                                                  really cultural, and a lot of that has to be really developed through
                                                                  organizations and sometimes through policy, where people are not
                                                                  really allowing ACDBEs or DBEs to come to the table, where they
                                                                  may put them inside of a contract, as you heard from earlier testi-
                                                                  mony, but not have them actually really participate and grow their
                                                                  business so that they cannot just be airport-side. They can grow
                                                                  their business to be on the private sector side that would help them
                                                                  make it to the 80-percent level.
                                                                     So this is truly not just a groundbreaking way to get minorities
                                                                  and women into the transportation industry, but a lot of them use
                                                                  this and catalyze this and leverage this opportunity to be able to
                                                                  go to the private side, which allows them to really grow their busi-
                                                                  ness and, as you would say, graduate, but to really bifurcate their
                                                                  portfolio so they can diversify it long enough so that they can be
                                                                  able to build sustainable businesses.
                                                                     Mrs. MILLER. Thank you so much.
                                                                     Mr. McDonald, following the COVID–19 pandemic, Broward
                                                                  County has had to adjust and adapt their business practices to help
                                                                  the DBEs stay on their feet. Could you speak to how Broward
                                                                  County utilized current resources to prepare the DBEs for the pan-
                                                                  demic?
                                                                     Did the county use the funds to prepare the DBEs for the pan-
                                                                  demic or to help them respond to the pandemic?
                                                                     Mr. MCDONALD. Thank you for that question, a good question.
                                                                     We actually did both. We were able, based on our programming
                                                                  and our activity, and specifically projects, because we had already




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                                                                  scheduled some projects with aviation, and we have some other
                                                                  county projects that also spoke to transit rather than to our DBE
                                                                  activity that we already had funds for.
                                                                     So when we recognized the troubles of COVID, one of the things
                                                                  that the commission had moved forward was to make sure that
                                                                  projects that were aligned with dollars, we could still continue
                                                                  those projects.
                                                                     But in the meantime, as we also look forward to rolling those
                                                                  projects out, we made sure in the economic development side of our
                                                                  office that we also involved the necessary handholding as our DBEs
                                                                  and other small businesses, minority and women, were looking to
                                                                  identify if they could qualify for PPP, EIDL, our regular State
                                                                  bridge loan program.
                                                                     We also made sure that we worked closely with our Miami office
                                                                  of the Small Business Administration to take other additional re-
                                                                  sources that have always been available, but make sure that those
                                                                  virtual workshops were in front of all of our DBEs.
                                                                     And where we are right now, we are beginning to roll out
                                                                  projects and activities that we, again, have the funding for, and
                                                                  since aviation traffic as one example is still slow, some of the
                                                                  projects that our airport director was looking to do, we can now
                                                                  start those projects. We can begin to align those goals, and we can
                                                                  have a way for our DBEs to participate.
                                                                     So we were able to at least juggle some opportunities on the
                                                                  frontend, use projects the county had already committed as a way
                                                                  to stabilize some of our DBEs, as well as to rejuvenate our economy
                                                                  with those projects, but more importantly, it did take time to make
                                                                  sure that those were projects that may not be available, but were
                                                                  able to take advantage of those Federal funds and other financial
                                                                  resources that were available.
                                                                     Ms. NORTON. Thank you very much.
                                                                     The gentlelady’s time has expired.
                                                                     I want to call next on Representative Eddie Bernice Johnson.
                                                                     Ms. JOHNSON OF TEXAS. Thank you very much, Madam Chair,
                                                                  and thanks to all the witnesses present.
                                                                     Let me say that this is my 28th year on this committee, and this
                                                                  is the most prevailing concern that has been expressed to me
                                                                  around the country since I have been a member of this committee,
                                                                  most especially with my own area.
                                                                     It was one of the first issues that I started working on when I
                                                                  came to this committee. Secretary LaHood, who came from this
                                                                  committee to become Secretary of Transportation, worked with us
                                                                  on language in order to make sure that when the language was put
                                                                  in the RFPs, there would be some sanctions if they were not fol-
                                                                  lowed.
                                                                     What we have gotten since we put this in place is a lot of RFPs
                                                                  that included minorities, but never got them involved once they got
                                                                  the RFP.
                                                                     I have been visited with women, minority women from all over
                                                                  this country complaining about that. He helped us come up with
                                                                  language, but we could not get Chairman Mica to support it at the
                                                                  time.
                                                                     And I notice there that is still overwhelming evidence of discrimi-
                                                                  nation, and really when we first started looking at this, there were




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                                                                  companies that were putting the name of the company into the
                                                                  spouse’s name in order to get Anglo women qualified. And so all
                                                                  of that has been experienced.
                                                                     And I really have a great interest in fairness and opportunity
                                                                  with it. So I have heard great testimony. I appreciate everyone
                                                                  being here, but I want to know from the witnesses when these
                                                                  RFPs are sent out and the minority participation is dictated, have
                                                                  you experienced any reason to believe that it is a serious effort to
                                                                  include minorities?
                                                                     Let me start with Mr. McDonald.
                                                                     Mr. MCDONALD. Thank you for the question.
                                                                     I believe that to your point, and you have certainly been at it
                                                                  longer than I have, but you are 100 percent correct. The language
                                                                  that was put in, it is my job as a Disadvantaged Business Enter-
                                                                  prise Liaison Officer to make sure and work with aviation and/or
                                                                  transit. When those RFPs cross our desk, I have to make sure that
                                                                  language is there that even supersedes that good faith effort.
                                                                     I have to make sure that there is language that is not impedi-
                                                                  ments or hurdles to the minority. So, yes, I do believe there have
                                                                  been situations, as the agency prepared the RFPs, that that lan-
                                                                  guage that supports DBEs is silent and those things that give op-
                                                                  portunity to overwrite the program are present.
                                                                     But it is the responsibility of individuals like myself, UCPs, as
                                                                  we are reviewing these, to catch that and to address that, and I
                                                                  can say at least in my 7 years here in Broward, especially the last
                                                                  3 years, working with my aviation director and my transit director,
                                                                  they have worked with me to assure that their RFPs, and with
                                                                  their staff, we are addressing that.
                                                                     But it is certainly has happened in the past, no question.
                                                                     Ms. JOHNSON OF TEXAS. Thank you very much.
                                                                     Mr. McDonald, I have had minority women visit me in Dallas,
                                                                  Texas, from Florida complaining that their names went into the
                                                                  RFPs, but they never got a call or even a word after the contract
                                                                  was let.
                                                                     Have you heard any reports of that?
                                                                     Mr. MCDONALD. Yes, I have, and one of the examples I can ex-
                                                                  plain is that when the DBEs are a part of the process and we do
                                                                  the letters of interest and the prime has to identify which DBEs
                                                                  they are going to be working with, as you can imagine, most primes
                                                                  go out and find five or six to try to reach that 10, 15, or 20 percent
                                                                  goal.
                                                                     When they submit their RFP, they have to identify specifically
                                                                  which of the DBEs they are going to use. It is that review that we
                                                                  do, and what we have started doing is asking our agency. But the
                                                                  primes notify the non-DBEs or the nonminorities that you are not
                                                                  going to use them.
                                                                     But we require that they submit who they are actually going to
                                                                  use as a part of the bid, and as a part of that posting, we list that.
                                                                     So it is true that a prime would have five or six to try to reach
                                                                  their goal, but they only need two or three, and it is the two or
                                                                  three they submit on the bid we hold them two, but yes, the other
                                                                  ones should be notified that they were not used.
                                                                     But we definitely record minority and women and the participa-
                                                                  tion.




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                                                                     Ms. JOHNSON OF TEXAS. Thank you very much.
                                                                     I have heard from my own city, the DART, which is the Dallas
                                                                  Area Rapid Transit, that they have no power to insist that the RFP
                                                                  that was selected include what they have in a contract; that they
                                                                  cannot enforce the fact that they have named the minority firm,
                                                                  and then they do not hire them.
                                                                     Do you have difficulty looking at the language to see whether or
                                                                  not there is enforcement language there? Because it is not being
                                                                  done in Dallas, Texas.
                                                                     And I just wonder if any of you have any experience with saying
                                                                  that their hands are tied of the local authorities for not sticking
                                                                  with the contract once it is let.
                                                                     Mr. Ali? Unmute.
                                                                     Mr. ALI. Yes, ma’am. Congresswoman, I apologize.
                                                                     I not aware of the situation. I have heard many stories like you
                                                                  have heard from Mr. McDonald of contracts like that, but I am not
                                                                  aware of any specific situation where that has occurred.
                                                                     I have had members express this to me, but I have not been wit-
                                                                  ness to any of the information on it.
                                                                     Ms. NORTON. The gentlelady’s time has expired.
                                                                     Ms. JOHNSON OF TEXAS. Yes, ma’am.
                                                                     Ms. NORTON. The gentlelady’s time has expired.
                                                                     Ms. JOHNSON OF TEXAS. Thank you.
                                                                     Ms. NORTON. Representative Babin.
                                                                     Dr. BABIN. Yes, ma’am. Thank you so much, Madam Chair.
                                                                     I want to thank all of you for your giving your time to participate
                                                                  as witnesses today, and I appreciate the work that went into set-
                                                                  ting up today’s hearing.
                                                                     However, I think we can all agree that the Department of Trans-
                                                                  portation Disadvantaged Business Enterprise program is a very
                                                                  important program and one that is overwhelmingly and
                                                                  bipartisanly supported here in Congress.
                                                                     And to suppose that anyone on this committee feels otherwise I
                                                                  think would be misleading and politically motivated.
                                                                     Now, with that said, I will keep this short. Every single day that
                                                                  focuses on identity politics is a day that we are not focusing on
                                                                  finding solutions to very real problems, problems like a debilitating
                                                                  national debt; a poor southern border where our interstates and
                                                                  our highways are being used to transport millions of tons of deadly
                                                                  drugs into our country; a port system that today is being use to fa-
                                                                  cilitate the real institution of modern day slavery, and that is
                                                                  human trafficking.
                                                                     All of these issues and more deserve our full attention. But we
                                                                  are here using our time and resources celebrating a program that
                                                                  is already supported by the Trump administration, by congres-
                                                                  sional Democrats and Republicans.
                                                                     I am not saying that this program is not worthy at all. It is cer-
                                                                  tainly worthy of our attention, but much the opposite, as we heard
                                                                  from Ms. Boyer’s testimony earlier today, and that as long as we
                                                                  emphasize identity politics, we can expect to see more division,
                                                                  more exclusion.
                                                                     We are one America, folks, all sexes, all races, all creeds, and
                                                                  identity politics is dividing us and in many ways keeps vulnerable




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                                                                  communities oppressed through perceived grievances and resent-
                                                                  ment.
                                                                     The American dream has produced prosperity and liberty, with-
                                                                  out a doubt, but some here maintain that it has increased inequal-
                                                                  ity, and we are seeing the consequences of that right now all across
                                                                  this great land and Nation of ours.
                                                                     My earnest prayer is that we could come together and effectively
                                                                  address the many issues within our committee’s jurisdiction that
                                                                  are not getting the attention that they deserve.
                                                                     I would like to thank you, Madam Chair, and I will yield back.
                                                                     Ms. NORTON. The gentleman yields back.
                                                                     This is an oversight hearing, and we have an obligation to do
                                                                  oversight, especially since we have just passed one of the few bills
                                                                  that has passed this time, which has been the transportation infra-
                                                                  structure bill.
                                                                     I am pleased to recognize Representative Hank Johnson.
                                                                     Mr. JOHNSON OF GEORGIA. Thank you, Madam Chair.
                                                                     This country was born out of the soil of racism. Slavery is what
                                                                  built this country, free labor off the backs of Black people. For 250
                                                                  years, Black people were enslaved in this country, and then for 100
                                                                  years thereafter we had Jim Crow apartheid imposed upon us.
                                                                     And then to say that in the 400-year history, 401-year history we
                                                                  should now consider Black businesses to compete on the same play-
                                                                  ing field, starting from the same starting point as White busi-
                                                                  nesses, some of which have been in existence in this country, you
                                                                  know, for 200, 300 years; to say that those Black businesses must
                                                                  compete with those White businesses from a level playing field, it
                                                                  is impossible.
                                                                     And that is why affirmative action has always been necessary,
                                                                  and as it was said earlier today, if you have got high blood pres-
                                                                  sure and you take medication for it, just because your medication
                                                                  has produced equilibrium, that does not mean that you stop taking
                                                                  the medication.
                                                                     So that is where we are in this country with the DBE program.
                                                                     And, Mr. Ali, in response to Congressman Larsen’s question, you
                                                                  revealed some of the specific challenges that airport DBEs are
                                                                  grappling with to survive during the ongoing COVID–19 pandemic.
                                                                     Are there any other challenges that minority airport conces-
                                                                  sionaires currently face that you want to bring to our attention?
                                                                     And are there any foreseeable challenges that DBEs are likely to
                                                                  face as they seek to compete in a post-pandemic recovery?
                                                                     Mr. ALI. Yes, I thank you, Congressman.
                                                                     I think it is important that we either focus on the short-term
                                                                  issues of the underwriting requirements, and so the constraints of
                                                                  what is making the private sector investment in these public as-
                                                                  sets. I mean, you do not have the same type of collateral.
                                                                     You cannot pledge the same kind of assets. You cannot give peo-
                                                                  ple the same sort of security interest in the underlying assets of
                                                                  your business when you are doing this work.
                                                                     And so the crippling effect of there is a quote that when one com-
                                                                  munity gets a cold, the other one gets pneumonia. I would say the
                                                                  other one may be getting COVID, and it is a slow kill.
                                                                     So it becomes quintessential that in these public-private partner-
                                                                  ships that we are able to find resources like with the SBA and the




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                                                                  EIDL loan program or the Main Street Lending Program, that
                                                                  there is some attention to not just providing resources for airports,
                                                                  but providing resources for the ACDBEs to be able to get maybe
                                                                  MAG abatement—minimal annual guarantee—fees abated.
                                                                     Right now there is currently a $3.5 billion proposal in the Senate
                                                                  bill which will include relief for concessionaires, and we are hoping
                                                                  that that will be addressed and may be in the bill for the CR.
                                                                     Mr. JOHNSON OF GEORGIA. Thank you.
                                                                     Ms. Boyer, in your testimony you argued for a national DBE cer-
                                                                  tification process as opposed to the current process which adheres
                                                                  to a State-by-State certification process. You contend that the 50-
                                                                  State certification process serves as an additional and unnecessary
                                                                  barrier to competition that women- and minority-owned businesses
                                                                  already face.
                                                                     Do you have anything else to tell us about the difficulties that
                                                                  the 50-State DBE certification process poses to your company’s
                                                                  ability to grow and compete?
                                                                     And do you believe that the 50-State certification process was
                                                                  put into place as an intentional barrier?
                                                                     Ms. BOYER. No, I certainly do not think it was an intentional
                                                                  barrier. Until something is lived, we have no idea to understand
                                                                  what the challenges are with it.
                                                                     So I think the program that was put in place was a great start,
                                                                  but because of the challenges that we have had, it’s just there to
                                                                  light that we do not have the same opportunities as large compa-
                                                                  nies that are more nimble, that can cross State lines.
                                                                     And when we develop a relationship with a large engineering
                                                                  firm, let’s say, that uses our expertise, they want us to be their
                                                                  partners, and we both together have a better ability to win projects
                                                                  by moving from State to State.
                                                                     It is just that they can just move State to State and get a busi-
                                                                  ness license. We have to get a business license and then start a
                                                                  certification process, and then on top of it we have to get a
                                                                  prequalification with the State that we are going to.
                                                                     So just to have that nimbleness of a unified DBE certification in
                                                                  the 50 States, I think, again, it just takes a little bit of the chal-
                                                                  lenge away, and any layer of challenge that we can eliminate just
                                                                  helps all of us.
                                                                     Mr. JOHNSON OF GEORGIA. Thank you.
                                                                     Ms. Williams, your company is certified in many areas, and one
                                                                  of your strengths has been that you are able to provide transit
                                                                  market research. In your company’s work and research, have you
                                                                  uncovered disparities in transit availability and equity that per-
                                                                  haps larger private companies overlook?
                                                                     And what factors enable DBEs to be uniquely positioned to pro-
                                                                  vide transit data that most affects underrepresented communities
                                                                  or communities facing transit inequity?
                                                                     And would a greater presence of DBEs on transit projects result
                                                                  in reducing transit inequity in underrepresentative communities?
                                                                     Ms. WILLIAMS. Wow, that was a tall order. I am going to try and
                                                                  remember the question.
                                                                     One of the things you mentioned, transit market research. So we
                                                                  know that transit agencies typically service 70 percent of their rid-




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                                                                  ers may come from low-income or disadvantaged or underrep-
                                                                  resentative neighborhoods.
                                                                     What has helped us in the transit market research business is
                                                                  the ability to go out and talk to these folks, to gather the informa-
                                                                  tion that is necessary for transit systems to make great decisions
                                                                  on routes and how they are serving the public.
                                                                     Then a minority firm is doing the market research. Typically we
                                                                  hire people that look like so. So we are able to connect.
                                                                     One of the things that was not mentioned here is on the IDIQ
                                                                  and task order type contracts, a lot of times what is happening
                                                                  these days is that you see a lot of these type contracts where you
                                                                  are included in the team, but your—and I hear the bell—your num-
                                                                  ber is never pulled.
                                                                     So you are with a big firm. You are on the team, but because it
                                                                  is a service order contract, they will just tell you your services were
                                                                  never required or never came up. And I have lost a lot of business
                                                                  on just that.
                                                                     Ms. NORTON. The gentleman’s time has expired.
                                                                     I want to call next on Representative Garcia.
                                                                     Mr. GARCIA OF CALIFORNIA. Thank you, Madam Chair.
                                                                     I really appreciate the opportunity here. A very important discus-
                                                                  sion, obviously. As a business owner myself and my wife a small
                                                                  business owner, I do understand the value of this and support the
                                                                  cause.
                                                                     Just going back to a statement that I believe Ms. Boyer made,
                                                                  it may have been Ms. Lerdahl made the statement as well. The
                                                                  frustrations with a formal mentorship program, I have been in sev-
                                                                  eral mentorship programs that are frustrating because they end up
                                                                  creating more work and more bureaucracy, and it sometimes slows
                                                                  us down while the intent is to help us speed up.
                                                                     I would just encourage a more informal mentorship program or
                                                                  network of mentors and mentees to where you could connect folks
                                                                  within industry to help each other out and synergize as much as
                                                                  possible.
                                                                     I know that is probably beyond the reach of any one of your char-
                                                                  ters or even the DBE’s charter, but I think that will pay off huge
                                                                  dividends if we can figure out how to get these sort of informal
                                                                  mentorships in motion and make those connections happen for the
                                                                  various folks.
                                                                     My question is somewhat along those lines. But do individual
                                                                  members, do individual business owners have access to a repository
                                                                  of some sort where there is a list of best practices or lessons
                                                                  learned from previous engagements or different agencies and equi-
                                                                  ties that you can point someone in the right direction and just say,
                                                                  ‘‘Hey, when this type of RFP comes out with this sort of turn-
                                                                  around time, this is where we have seen the most success. Contact
                                                                  this agency first, this agency second’’?
                                                                     I do not know what those solutions would be. You guys would,
                                                                  but is there a database somewhere or some sort of a repository that
                                                                  is made available to folks that can tap into those lessons learned
                                                                  and not make some of the mistakes that we all have made in the
                                                                  past as we navigate these competitions, which is what they are?




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                                                                     Is there a place that has the right contact plans, the right cap-
                                                                  ture plans, and sort of the lessons learned from several, probably
                                                                  hundreds of different captures?
                                                                     And I guess, you know, that is directed to Mr. Wainwright, Ms.
                                                                  Boyer, and Ms. Williams as well.
                                                                     Mr. WAINWRIGHT. Well, I will jump in. I am not sure I am the
                                                                  perfect person to answer that, but I would think that organizations
                                                                  like those that are represented here today, COMTO, AMAC, ACCA,
                                                                  that is where people go every year and multiple times a year to
                                                                  network with their colleagues, to share those ideas they have, cer-
                                                                  tification levels for their own people as their trainers get better and
                                                                  better at what they know.
                                                                     And I am sure Ms. Williams and Mr. Ali can speak more to that,
                                                                  but that would be probably the first place I would think where that
                                                                  kind of institutional knowledge is deposited.
                                                                     Mr. GARCIA OF CALIFORNIA. And before you jump in, guys, I
                                                                  think my question is: is it memorialized somewhere? Is it a link or
                                                                  a database somewhere that folks can access and get sort of the uni-
                                                                  formity of it, but also the consistency and making sure that every-
                                                                  thing is actually memorialized?
                                                                     Mr. WAINWRIGHT. That I do not know. My guess is it comes and
                                                                  I know in my experience with those associations, every annual
                                                                  meeting I go to I come away with reams of good, solid information
                                                                  that I did not have before.
                                                                     Whether it is easy to get to as a link, I doubt, but Ms. Williams
                                                                  and Mr. Ali may know better about that, Representative.
                                                                     Thank you.
                                                                     Ms. WILLIAMS. This is Eve Williams.
                                                                     In regard to COMTO, as you said, Mr. Wainwright, there is a
                                                                  tremendous amount of outreach [inaudible].
                                                                     A database of sorts that might [inaudible], with APTA, which is
                                                                  the American Public Transportation Association, is to develop such
                                                                  a database, and we have talked about it a number of times and to
                                                                  become more of a free source for small and disadvantaged busi-
                                                                  nesses so they can reach us and get information on how to do cer-
                                                                  tain things.
                                                                     This is the type of work that comes for people to actually have.
                                                                  They are so difficult to [inaudible], and until somebody comes up
                                                                  with a question that is typically not an answer, but an app that
                                                                  we did not have, industry standards and [inaudible] have a lot of
                                                                  things that are available to our members, as well as COMTO.
                                                                     Mr. GARCIA OF CALIFORNIA. OK. Thank you.
                                                                     I see I am out of time. I yield back, Madam Chair.
                                                                     Ms. NORTON. Thank you very much.
                                                                     We will hear next from Representative Maloney.
                                                                     Representative Maloney, are you muted?
                                                                     [No response.]
                                                                     Ms. NORTON. We will pass on then to Representative Brownley.
                                                                     Representative Brownley, are you muted?
                                                                     [No response.]
                                                                     Ms. NORTON. Then we will go to Representative Payne.
                                                                     Mr. PAYNE. Thank you, Madam Chair.




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                                                                     Before I start, I cannot help but comment on one of my col-
                                                                  leagues, two gentlemen prior to me on the other side of the aisle
                                                                  representing identity politics.
                                                                     Well, on a topic such as this, and I appreciate the chairwoman
                                                                  pointing out our oversight duties, which is the bottom line, it just
                                                                  appears that one of the reasons that we are in the situation are
                                                                  statements and opinions such as that.
                                                                     So the good ol’ boys network is still in place.
                                                                     Mr. Ali, what tools does the Airport Minority Advisory Council
                                                                  organization use [inaudible] from airports on the runway side and
                                                                  the horizontal-vertical side of civil builders? [Inaudible] airports?
                                                                     Ms. NORTON. I am not sure that the question was received. Do
                                                                  you receive the question? Part of it was——
                                                                     Mr. ALI. No, ma’am, I could not receive the question.
                                                                     Ms. NORTON. Could I ask Representative Payne to repeat the
                                                                  question?
                                                                     Representative Payne, part of the question was not heard by us
                                                                  or by the gentleman you asked to respond. So could you repeat
                                                                  your question again?
                                                                     You may be muted. Could you unmute, Representative Payne?
                                                                     Mr. PAYNE. Is that better?
                                                                     Ms. NORTON. Yes.
                                                                     Mr. PAYNE. Oh, I am sorry. I am so sorry.
                                                                     Mr. Ali, what tools does the Airport Minority Advisory Council
                                                                  use to get more DBE contractors ready for work at airports on the
                                                                  air runway side and the horizontal and vertical side of civil build-
                                                                  ers?
                                                                     Can the Federal Government play a stronger role in developing
                                                                  more industry contractors at airports?
                                                                     Mr. ALI. I thank you, Congressman.
                                                                     Before COVID, we had lots of training and development that we
                                                                  did face to face at our annual conference when we talked around
                                                                  service delivery as well on the construction side and the service
                                                                  side.
                                                                     During the pandemic side, we have moved to webinars to be able
                                                                  to facilitate some of that training. As you can imagine, certain con-
                                                                  tracts in construction are for the DBE program, but a lot of that
                                                                  is your social networks.
                                                                     And so social networks and business allow for people to partici-
                                                                  pate more readily than others. So we recognize that. So we try to
                                                                  make sure we do matchmaking with the larger contractors with the
                                                                  people that we may have in our database so they can have some
                                                                  great opportunities.
                                                                     We also have regional directors throughout the country so that
                                                                  it can align and find themselves to do more partnerships with that.
                                                                     And then as you continue to move forward, I think if you were
                                                                  looking at ways for the Federal Government to create policies that
                                                                  would be important or impactful is how do we look at PFCs in the
                                                                  future.
                                                                     As we know, a lot of the funding has moved from AIP funding
                                                                  to PFC funding, is to ensure that the DBE regulation as you go for-
                                                                  ward will have or also include PFC dollars. As many people can tell
                                                                  you here, the AIP dollars or airport improvement dollars have the




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                                                                  DBE program. The PFCs, which is the passenger facility charges,
                                                                  do not have the DBE grant assurances.
                                                                     So as a result, I believe, you will start seeing a diminishing of
                                                                  utilization of DBEs.
                                                                     Mr. PAYNE. OK. Thank you.
                                                                     Mr. McDonald, we have heard positive things about Broward
                                                                  County’s funded capital construction program. What type of success
                                                                  have you had with providing work to local DBE firms?
                                                                     And can your program plan be implemented in other areas?
                                                                     [Interruption to audio.]
                                                                     Ms. NORTON. Thank you.
                                                                     Continue please.
                                                                     Mr. PAYNE. Thank you.
                                                                     Mr. McDonald, should MWDBE participation in your program re-
                                                                  quire third party determination and signoff before majority primes
                                                                  sign contracts with DBE inclusion?
                                                                     Mr. MCDONALD. Thank you, Congressman, for that question.
                                                                     Yes. Our program can be duplicated. Again, running an economic
                                                                  development and a small business office and administering the
                                                                  Federal program, we understand the importance from my local
                                                                  small businesses all the way to my DBEs where they need the ad-
                                                                  ditional assistance.
                                                                     So one of the things we do, similar to what Mr. Ali just shared,
                                                                  we do as many meet and greets, whether purchasing does pre-bids
                                                                  or not.
                                                                     During COVID and pre-COVID, we did pre-meetings or what we
                                                                  call meet and greets as possible, for sure, that from an agency per-
                                                                  spective, we speak to the DBEs about all of the opportunities that
                                                                  are on the route.
                                                                     From potential prime perspective, we call them in as potential
                                                                  primes and explain the program and the expectations of the office.
                                                                     As mentioned earlier to one of the speakers, we actually do have
                                                                  a requirement as a part of that LOI, whoever you submit you are
                                                                  married to unless it goes through a process of my office and my
                                                                  final signature that there is a reason to substitute.
                                                                     So it is the idea that the program tries to enforce exactly what
                                                                  49 CFR requires us to do. It is the idea that I do have the support
                                                                  of the county commission, the county administrator, and my agency
                                                                  that support the bid all the way to the utilizations of the primes.
                                                                     And we do believe that as a model—and nothing is perfect, I am
                                                                  not acting as if it is—there is an opportunity to empower primes
                                                                  to recognize that this requirement is one that we also want, as you
                                                                  have heard, to develop and nurture those relationships.
                                                                     Mr. PAYNE. OK.
                                                                     Mr. MCDONALD. We were given an [inaudible] a few years ago
                                                                  to not set a goal just to see. I refused. I knew that without the goal
                                                                  they would not do it.
                                                                     So we are crystal clear. I just had a primes meeting last month—
                                                                  a virtual—to let them know that this is not only a requirement. It
                                                                  is also monitored and reported, and we will act on it.
                                                                     So it really requires us to do what the law allows us to do.
                                                                     Mr. PAYNE. Thank you very much.
                                                                     And, Madam Chair, I yield back.
                                                                     Ms. NORTON. The gentleman’s time has expired. I thank you.




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                                                                     Representative Palmer.
                                                                     Mr. PALMER. Thank you, Madam Chairman.
                                                                     Ms. Boyer, in 2013, the Office of Inspector General issued a re-
                                                                  port saying that there were DBE firms that were deliberately lim-
                                                                  iting the amount of new contract dollars in order to stay eligible
                                                                  for the program.
                                                                     Do you think that that is harmful to those programs?
                                                                     And I will explain why I asked this in a moment.
                                                                     Is she still there?
                                                                     Ms. BOYER. Yes. Yes, I am.
                                                                     I do think it is harmful to the program. I believe that the pro-
                                                                  gram is about empowering firms to get a leg up, get a start, get
                                                                  a lot of experience, and be able to step out and perform on a level
                                                                  playing field.
                                                                     I think it is the fear that overcomes a small business to step out
                                                                  because it is that, you know, we hear so often that if there is not
                                                                  a DBE goal, then we are going to do it ourselves.
                                                                     So I think it is a fear, and I just think there needs to be more
                                                                  of a ladder in between.
                                                                     Mr. PALMER. Well, the reason I bring this up and the possibility
                                                                  that there needs to be some term limits for how long you can stay
                                                                  in the program is you made another point earlier about lacking the
                                                                  nimbleness that larger firms have.
                                                                     And is that not largely a function of resources, your undercapital-
                                                                  ized cash flow issues, that you do not have the nimbleness that the
                                                                  other firms have?
                                                                     Ms. BOYER. Yes, certainly. I mean, it is nimbleness when it
                                                                  comes to being able to move to opportunities. I think within our
                                                                  company, we are actually were able to move fairly quickly, but we
                                                                  are mostly undercapitalized. It is very difficult to get capital, and
                                                                  it takes years and years.
                                                                     So my company is only 16 years old. So it takes years and years
                                                                  to get to a point where you can sustain yourself.
                                                                     Mr. PALMER. My point about this is that I am kind of odd in my
                                                                  reading choices. Where some people read novels, I tend to read re-
                                                                  ports.
                                                                     But there was a report from the Federal Reserve Bank, I think
                                                                  one from St. Louis and one from Atlanta, that talked about how
                                                                  minority-owned and women-owned businesses are undercapitalized.
                                                                     And one of the things that I think we need to do to address this
                                                                  situation is to follow on what President Trump has done with the
                                                                  Opportunity Zones and maybe do a broader version of that that
                                                                  incentivizes financial institutions to work with minority-owned and
                                                                  women-owned businesses to help them to get to a stronger position
                                                                  in terms of available capital, which will help address this
                                                                  nimbleness issue that you raised.
                                                                     But I think it is also important in the DBE program that we not
                                                                  incentivize companies that are in that program to stay in that pro-
                                                                  gram because you will never grow. And I would just like your
                                                                  thoughts on that and maybe Mr. Wainwright weigh in on that as
                                                                  well.
                                                                     Ms. BOYER. Sure. So I mean, it would help to have the financial
                                                                  institutions more onboard in helping minority- and women-owned




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                                                                  businesses. I mean, it is definitely something that holds most peo-
                                                                  ple back.
                                                                     For me, our company always kids that we are in the basement
                                                                  of the bank. They always ask, ‘‘Is there a man that is involved in
                                                                  your decisionmaking?’’
                                                                     And, we have been building a successful business and doing well
                                                                  being run by women. So I think it would help.
                                                                     Mr. PALMER. And your answer is you don’t need no stinking
                                                                  man?
                                                                     Ms. BOYER [Laughter.] In collaboration and, yes, in support.
                                                                     Mr. PALMER. You just need a good banker.
                                                                     Ms. BOYER. And good bankers are hard to find for women and
                                                                  minorities. I mean, we know the banking industry. It is always a
                                                                  challenge. It really is.
                                                                     Right now I am using a very small bank from my hometown, not
                                                                  even in the State that I am working in. Because of the personal
                                                                  relationships, they know my family. They know my brothers and
                                                                  sisters, and they trust me.
                                                                     Mr. PALMER. Madam Chairman, I know we are in the midst of
                                                                  a highly partisan election, but I think what we need to at least give
                                                                  some credit to the Trump administration on the Opportunity Zones,
                                                                  and we need to think about how we expand this to make more cap-
                                                                  ital available to minority-owned and women-owned businesses.
                                                                     And I would recommend that our colleagues look at these reports
                                                                  from the Federal Reserve Banks and start thinking about how at
                                                                  some point we work together to address this.
                                                                     And I yield back.
                                                                     Ms. NORTON. I thank the gentleman for his suggestion, and as
                                                                  he notes, this is a very bipartisan committee, and this issue is very
                                                                  bipartisan. So I believe the chairman will take note of what you
                                                                  have asked astutely.
                                                                     Representative Plaskett.
                                                                     Are you muted, Representative Plaskett, who is next?
                                                                     [No response.]
                                                                     Ms. NORTON. Then we will move to Representative Carbajal.
                                                                     Mr. CARBAJAL. Thank you, Madam Chair.
                                                                     Dr. Wainwright, today we have heard business owners tell us
                                                                  they believe discrimination would prevent them from being success-
                                                                  ful in business in the absence of this program. Statistical analysis
                                                                  can shed further light on the question by comparing situations
                                                                  where a DBE program is in effect with situations in the same juris-
                                                                  diction the program is not in effect.
                                                                     Do you agree and do you believe doing that provides useful evi-
                                                                  dence?
                                                                     And if so, what does the evidence you have reviewed dem-
                                                                  onstrate?
                                                                     Mr. WAINWRIGHT. Thank you, Representative.
                                                                     We have heard from Ms. Lerdahl about what has happened in
                                                                  Washington DOT. The overwhelming majority of examples of so-
                                                                  called parity that I am familiar with are quite recent, and as some
                                                                  DBE programs have matured and programs like them.
                                                                     In my experience they are rarely statistically significant, which
                                                                  means they do not necessarily show parity at all, which is what we
                                                                  learned with the subsequent disparity study that was performed by




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                                                                  Washington DOT, despite U.S. DOT ignoring those results when
                                                                  the request to rescind the waiver came in.
                                                                     But second, these results in the rare instances that they occur
                                                                  are statistically significant in the context in which availability fig-
                                                                  ures have been artificially depressed due to discrimination.
                                                                     You remember I testified that minority- and women-owned firms
                                                                  are forming at much lower rates than similarly situated majority
                                                                  firms because of discrimination. If such firms were forming at the
                                                                  same rate as majority male firms, there would be few, if any, find-
                                                                  ings of parity.
                                                                     Third, you really should not consider a category of DBE to have
                                                                  achieved parity until you have seen the same result appear consist-
                                                                  ently in the private sector, that is, in the census data.
                                                                     Again, this is like the blood pressure metaphor I have used pre-
                                                                  viously.
                                                                     Remember the only markets in which there has been any at-
                                                                  tempt to level the playing field are the public contracting markets,
                                                                  like the federally assisted transportation market.
                                                                     And the far larger and more lucrative private sector DBE pro-
                                                                  grams are rare to nonexistent, and majority male-owned firms gen-
                                                                  erally get almost all of the business.
                                                                     We also have to remember that majority male-owned firms have
                                                                  literally had centuries to grow and establish their firms with effec-
                                                                  tively zero competition from minorities and women.
                                                                     Early on, the lack of competition was a direct result of laws that
                                                                  intentionally and explicitly disadvantaged women and minorities.
                                                                  Later it was the result of discriminatory practices that were per-
                                                                  mitted to continue despite civil rights laws.
                                                                     Finally, we should consider the practical effects of suspending
                                                                  the operation of the program every time some subcategory of pro-
                                                                  gram participant achieves a modicum of success. This will not re-
                                                                  duce discrimination. It will just tend to increase bankruptcies, as
                                                                  we have heard so poignantly from Ms. Lerdahl, and then those
                                                                  same entrepreneurs or others like them will need to be added right
                                                                  back into the program.
                                                                     Thank you.
                                                                     Mr. CARBAJAL. Thank you.
                                                                     Dr. Wainwright, this committee has received reports that some
                                                                  State and local transportation agencies have excluded certain mi-
                                                                  nority ethnic or gender groups from their programs because these
                                                                  groups have finally reached or exceeded, quote, unquote, ‘‘parity’’
                                                                  according to a disparity study.
                                                                     Do you believe excluding from the program certain groups who
                                                                  reach some measure of parity in the market is the right approach?
                                                                     Mr. WAINWRIGHT. No, it is not, and I believe that was what I just
                                                                  addressed in my previous response. So maybe I misunderstood your
                                                                  initial question.
                                                                     Mr. CARBAJAL. Thank you.
                                                                     I have limited time. So, Ms. Lerdahl, you stated in your testi-
                                                                  mony that after being excluded from the DBE program, you bid on
                                                                  several contracts, but were unsuccessful.
                                                                     To your knowledge, did those contracts go to other DBEs?
                                                                     Ms. LERDAHL. Thank you, Representative, for the question.




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                                                                     No, absolutely not. They went to large electrical companies that
                                                                  were not DBE firms, and in fact, our experience in the State of
                                                                  Washington was when the waiver was enacted, prior to that, the
                                                                  DBE community had about 17 percent participation, and after the
                                                                  waiver was enacted, that fell to about 8 percent or 81⁄2 percent par-
                                                                  ticipation, approximately.
                                                                     So those DBE dollars did not go to other DBE firms. They actu-
                                                                  ally went to the prime contractors who self-performed that work.
                                                                     Mr. CARBAJAL. Thank you very much.
                                                                     Madam Chair, I yield back.
                                                                     Ms. NORTON. Thank you very much.
                                                                     Representative Graves, and thank you, Representative Carbajal.
                                                                  We now go to Representative Graves.
                                                                     Mr. GRAVES OF LOUISIANA. Thank you. Thank you, Madam
                                                                  Chair.
                                                                     Witnesses, I want to thank you very much for your testimony
                                                                  and participation today.
                                                                     My first question is for Mr. Ali.
                                                                     Mr. Ali, in the 2018 FAA reauthorization bill, we changed the
                                                                  size standard for DBEs in the legislation in regard to FAA DBE
                                                                  participation. I am just curious if you have any reflection or reac-
                                                                  tion to that law change and how it might have caused an impact
                                                                  on DBE contracts within the aviation space.
                                                                     Mr. ALI. Yes, I think it was good that we had, in regard to that
                                                                  position, when you start looking at it, we had to have the size to
                                                                  equal the SBA. I mean, that helped with DBEs because some of the
                                                                  size standards were not working. They were not equivalent.
                                                                     So we really appreciate what the committee has done and argued
                                                                  for this inclusion of this kind in the Moving Forward Act we
                                                                  thought.
                                                                     Mr. GRAVES OF LOUISIANA. Thank you.
                                                                     I want to first ask Mr. McDonald and perhaps Ms. Norman. Our
                                                                  State department of transportation in Louisiana has indicated that
                                                                  some of their success in growing DBE participation has been the
                                                                  result of these community partnerships that they have helped to
                                                                  establish and sort of create a larger market within the DBE com-
                                                                  munity for some of the contractors to be able to hit their DBE
                                                                  goals.
                                                                     Have you all established any type of partnerships or any other
                                                                  strategies that have resulted in increasing DBE participation?
                                                                     Mr. MCDONALD. I would say that we have, and as I mentioned
                                                                  earlier, the idea that we extend that same olive branch to our
                                                                  primes that I do with my DBEs. I actually hold virtual workshops
                                                                  now during COVID, but prior, meet and greets with the primes to
                                                                  make sure that they understand the county’s program, that they
                                                                  understand the Federal program; they understand our expecta-
                                                                  tions.
                                                                     And certainly, we want to entertain any questions or concerns
                                                                  they may have historically had with our DBEs. We also then do the
                                                                  same with the primes and the DBEs.
                                                                     The model I am trying to describe is that the more we know
                                                                  about the project price, the more we extend the information to the
                                                                  DBE community as well as the prime community before the bid




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                                                                  ever comes out helps to build the relationship so that they under-
                                                                  stand the county is serious about the Federal program.
                                                                     We are going to adhere to the 49 CFR regulations, and that is
                                                                  not against the prime. That just makes sure that the prime under-
                                                                  stands that it’s a commitment for our great economy to use our mi-
                                                                  norities and women and, yes, to allow our minorities and women
                                                                  as DBEs to get in front of our primes early for the pre-qualifiers.
                                                                     So that’s one of the things that we do on a regular basis to try
                                                                  to assure that who the primary themselves who have the DBE,
                                                                  they maintain them and also to let us know that we are having
                                                                  challenges with our DBE so that we can continue to try to develop
                                                                  them.
                                                                     So we do the collaboration regularly.
                                                                     Mr. GRAVES OF LOUISIANA. Thank you. Thank you. I appreciate
                                                                  that.
                                                                     Ms. Norman, I don’t know if there is anything you wanted to
                                                                  add.
                                                                     Ms. NORMAN. Yes, same here. We do our collaboration opportuni-
                                                                  ties with our primes.
                                                                     We also have what we call the TDAC. It is the DBEs, our Trans-
                                                                  portation DBE Advisory Committee. It is where the DBEs come to-
                                                                  gether along with the primes. They have their president, their vice
                                                                  president, secretary, and treasurer. We meet quarterly.
                                                                     Out of that they build relationships. Every year we hold what we
                                                                  call a DBE symposium, where we bring in primes, where we bring
                                                                  in DBEs who have graduated from the program.
                                                                     We also have, as you enter the workshop, we have what we call
                                                                  a matchmaking event so that we can match some of the DBEs with
                                                                  the primes, some of the scope of work opportunities, and so we do
                                                                  that often.
                                                                     We also seek out, as someone talked about earlier, mentorship
                                                                  programs, partnering with large firms like within the tolling indus-
                                                                  try where there are not a lot of DBEs who have that skill set;
                                                                  partnering with those kinds of agencies to build the capacity for
                                                                  our DBE firms.
                                                                     So it is about partnership, and it is about collaboration.
                                                                     Mr. GRAVES OF LOUISIANA. Thank you, Ms. Norman. Thank you
                                                                  and Mr. McDonald.
                                                                     The last question, I am going to kind of bring those two together.
                                                                  So years ago I ran a large infrastructure program, and often we
                                                                  would meet with DBEs that wanted more work.
                                                                     The type of work that we did in some cases was a very special-
                                                                  ized area, and so we would be sitting there with contracts of tens
                                                                  of millions or maybe even hundreds of millions of dollars, and as
                                                                  you can understand, somewhat cautious or concerned about giving
                                                                  a contract to a firm that maybe does not have that resume or that
                                                                  portfolio of expertise in the field.
                                                                     You have both talked about partnerships and mentoring pro-
                                                                  grams. So on the one hand, we have eliminated the gross receipts
                                                                  cap in the FAA, the H.R. 2. The highway bill that is moving
                                                                  through also eliminates that nearly $24 million gross receipts cap.
                                                                     I am trying to figure out how do you strike that right balance
                                                                  of not giving contracts to folks that do not have the right expertise,
                                                                  but at the same time do not allow these huge contracts to slide in




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                                                                  under a DBE label whenever they are taking work from smaller
                                                                  businesses.
                                                                      Ms. Boyer, do you want to comment on that at all?
                                                                      Ms. BOYER. I think one of the things that we have done in Illi-
                                                                  nois for the Illinois Department of Transportation is we do a lot of
                                                                  teaming between small firms and large firms, and that seems to
                                                                  really work well. It gives the small firms the ability to lead the
                                                                  project, but it has the support of the larger firms that have the
                                                                  breadth of experience and really a workforce that can help us out
                                                                  when we need the extra manpower.
                                                                      So I think joint mentoring and teaming opportunities between
                                                                  prime and DBE firms is really important, and I think it is a way
                                                                  to advance us all because what it also does is the prime firm learns
                                                                  or the bigger firm learns how to be a sub. They learn that informa-
                                                                  tion needs to flow up and down, and sometimes if they never have
                                                                  the opportunity to work as a subconsultant or a subcontractor, they
                                                                  never understand the importance of passing on information in a
                                                                  timely manner.
                                                                      They do not even have any idea what it is like to be a DBE firm.
                                                                  So I think overall it strengthens the entire industry.
                                                                      Mr. GRAVES OF LOUISIANA. Thank you very much. I appreciate
                                                                  it.
                                                                      I yield back, Ms. Chair.
                                                                      Ms. NORTON. I thank the gentleman for his question.
                                                                      Representative Stanton.
                                                                      Mr. STANTON. Thank you very much, Madam Chair. Thank you
                                                                  for holding this important hearing.
                                                                      Thank you to the witnesses for being here.
                                                                      As people on the committee know, I am a new Member to Con-
                                                                  gress. My former job was mayor of a large city, mayor of the city
                                                                  of Phoenix, and I am a huge fan of the DBE program.
                                                                      I witnessed with my own eyes when we were lucky enough to do
                                                                  a large infrastructure program at our airport or advanced light rail
                                                                  in my city or build a water treatment plant the opportunity to get
                                                                  businesses, often small businesses led by women, led by people of
                                                                  color, an opportunity to get a portion of that work and see them
                                                                  build their companies, grow employment, build their own wealth.
                                                                      It is really great for the city, and a benefit of this program also
                                                                  that I witnessed over and over again is that the DBE firm leader-
                                                                  ship often would become the leadership of the city. As those compa-
                                                                  nies grew in size and importance in our community, I would tap
                                                                  the leadership of those companies for important boards and com-
                                                                  missions or nonprofit board seats, et cetera.
                                                                      They tend to be some of the most civically active business leaders
                                                                  in a community. The DBE program is critically important to open-
                                                                  ing the door for small businesses owned by socially and economi-
                                                                  cally disadvantaged individuals to compete for important federally
                                                                  funded projects.
                                                                      Today I want to highlight just one DBE success story in Arizona.
                                                                  Arizona Heat Contracting, a woman-owned DBE company, had
                                                                  only one contract with our State DOT prior to joining the South
                                                                  Mountain Freeway Team, the largest project to date in Arizona at
                                                                  almost $2 billion. The company was contracted to perform trucking
                                                                  activities on this new 22-mile freeway.




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                                                                     The original contract was for $25,000. That was just the start.
                                                                  The company did well and kept growing and growing, got in new
                                                                  contracts, ultimately got contracts valued up to $9 million, and
                                                                  then they were able to subcontract with over 81 DBE and non-DBE
                                                                  trucking firms to assist in delivering the main portion of the
                                                                  project’s trucking needs.
                                                                     That is a great success story. They were successful in maintain-
                                                                  ing ownership and control of the trucking operations on a project
                                                                  which had an aggressive schedule and many requirements.
                                                                     Arizona Heat was able to quickly adapt to take the necessary
                                                                  steps in a very short period of time in order to sustain the needs
                                                                  of the project and increase its capacity.
                                                                     I mean, that story has played out over and over and over again
                                                                  in communities throughout this country. It is just one example of
                                                                  many successful DBE programs in my State and has been in so
                                                                  many other States.
                                                                     I have a question for Ms. Williams.
                                                                     Ms. Williams, the committee recently enacted a provision which
                                                                  was included in H.R. 2, the Moving Forward Act, to remove the
                                                                  gross receipts cap under the DBE provisions applicable to the Sur-
                                                                  face Transportation Program.
                                                                     If enacted, certified DBEs would be eligible to participate in fed-
                                                                  erally funded highway and transit projects based upon their Small
                                                                  Business Administration size standard, as is the case in the avia-
                                                                  tion DBE program.
                                                                     Ms. Williams, how would such a change benefit certified DBEs
                                                                  seeking to participate on highway and transit projects?
                                                                     Ms. WILLIAMS. Thank you. That is a great question.
                                                                     I think it will help if those caps were lifted. However, many
                                                                  times the problems for graduating or the problem existed that
                                                                  pushes people out of the program is not the cap on gross receipts.
                                                                  It is the cap on personal net worth.
                                                                     If I do not have the personal net worth to go after a $24 million
                                                                  project, then it does not behoove me to go after it. I do not have
                                                                  the resources to fund it.
                                                                     And so I think a greater emphasis should be put on looking at
                                                                  the personal net worth cap as well.
                                                                     Mr. STANTON. All right. You have given this committee a lot of
                                                                  food for thought with that good advice. I appreciate that, Ms. Wil-
                                                                  liams.
                                                                     Mr. Ali, how has participation in the DBE and ACDBE programs
                                                                  made AMAC members more competitive outside of the DBE pro-
                                                                  gram?
                                                                     Mr. ALI. Yes, thank you for the question.
                                                                     What we found, as you heard earlier, the joint ventures that you
                                                                  heard from Ms. Boyer, those joint ventures and those teaming ar-
                                                                  rangements, that you have seen that happen more often, and as a
                                                                  result, they have been able to take some of those partnerships out-
                                                                  side of the airport industry into other transportation industries as
                                                                  well as into the private industry, which allows them to build rela-
                                                                  tionships.
                                                                     We should never forget business is done with people in business
                                                                  with people you know, people you like, and people you trust. And
                                                                  that is really done in this space where you get people to engage.




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                                                                     So the DBE program kind of helps to align for some of that, par-
                                                                  ticularly since there has been so much discrimination in the past,
                                                                  that this provides a way for people to partner and grow and learn
                                                                  to work and build together so they can do exactly what you said.
                                                                  People get to know who they are and be able to put them on board
                                                                  commissions together.
                                                                     Mr. STANTON. Thank you, Mr. Ali.
                                                                     Thank you, Madam Chair. It has been an excellent, excellent
                                                                  hearing. I yield back.
                                                                     Ms. NORTON. I thank the gentleman.
                                                                     Representative Fletcher. Representative Fletcher.
                                                                     Mrs. FLETCHER. Yes. Thank you, Chairwoman, and thank you
                                                                  and also Ranking Member Graves and Chairman DeFazio for hold-
                                                                  ing the hearing today.
                                                                     Thank you so much to the witnesses for taking the time to tes-
                                                                  tify. Your stories have been very powerful.
                                                                     I also want to thank my colleagues for their thoughtful questions
                                                                  and their ongoing support of the important work we are doing here
                                                                  today, especially Mr. Johnson from Georgia, who reminded us all
                                                                  why this program exists and why it matters.
                                                                     As we have heard, the DOT Disadvantaged Business Enterprise
                                                                  program is an important program created to ensure that minority-
                                                                  and women-owned businesses have a fair chance to compete for
                                                                  Federal DOT funds, a program that has historical roots that, as we
                                                                  have heard from our witnesses, is very much needed today.
                                                                     For more than 40 years, the program has opened access to small
                                                                  businesses across the country who would otherwise not be able to
                                                                  compete for many of these projects, and we have seen the results
                                                                  in my hometown, for example.
                                                                     Thanks to this program, more than 30 percent of both George
                                                                  Bush Intercontinental Airport and William P. Hobby Airport con-
                                                                  tracting and concessions goes to ACDBEs.
                                                                     But as we have heard today, the committee has an important
                                                                  role in ensuring that the marketplace for DOT-assisted contracts is
                                                                  free from artificial and discriminatory barriers for women- and mi-
                                                                  nority-owned businesses who wish to compete on a level playing
                                                                  field.
                                                                     So I want to use my time here today to follow up on a few ques-
                                                                  tions that some of my colleagues have already asked, and I actually
                                                                  want to start with Ms. Williams.
                                                                     In your opening statement, I think the end of your opening state-
                                                                  ment was interrupted, and so I would like to give you the oppor-
                                                                  tunity to just repeat the concluding sentence, the thing that you
                                                                  wanted to say in conclusion of your opening remarks.
                                                                     Ms. WILLIAMS. Well, thank you so much.
                                                                     I will repeat that. So in conclusion, I wanted to say that the pro-
                                                                  gram is not a handout. It is a leg up. It forces big companies and
                                                                  public transit agencies or public transportation authorities to do
                                                                  business with minority companies.
                                                                     Without the DBE program, we would probably be out of business
                                                                  at the end of the life cycle of our contracts that are in the pipeline.
                                                                     And my last statement there was that we need to be protected
                                                                  like we protected the bald eagle.




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                                                                     Mrs. FLETCHER. Well, thank you so much, Ms. Williams. I did
                                                                  want to hear you full statement, and I want to follow up with you
                                                                  on a particular question kind of following up on what Chairman
                                                                  DeFazio was asking in his questions to Dr. Wainwright about pub-
                                                                  lic versus private projects.
                                                                     Can you share with us kind of the percentage of your work or
                                                                  your revenues that comes from public versus private projects?
                                                                     And talk about kind of the effect of the DBE program, public
                                                                  versus private, and how that might help particularly in the bidding
                                                                  process in Dallas, but also more generally.
                                                                     Ms. WILLIAMS. Private work is null. We have probably done a
                                                                  few private projects in the past. They tend not to come frequent
                                                                  enough to sustain us, and they also come with other issues that we
                                                                  do not face when we do public work, like getting paid. That is im-
                                                                  portant.
                                                                     As far as the contracts that we do have in the public sector, those
                                                                  have been our lifeline. I think that without those projects, we
                                                                  would not be in business. We just simply would not because we de-
                                                                  pend on the DBE program.
                                                                     Would I like to graduate? I would, but as others have mentioned,
                                                                  it is frightening because I know what happens when you pull the
                                                                  covers back.
                                                                     I think sustainability is really important, and sustainability hap-
                                                                  pens when there is continuity between projects, when you are able
                                                                  to retain staff between projects, when the team you have worked
                                                                  with is continuing on to another project together.
                                                                     And so there is a lack of continuity, and what happens is you are
                                                                  forced to lose your resources because you cannot sit them on a
                                                                  bench. And so this cycle just starts over and over and over again.
                                                                     Thank you.
                                                                     Mrs. FLETCHER. Thank you very much, Ms. Williams.
                                                                     And I want to use the remaining time that I have, which is not
                                                                  a lot, to direct a question to Dr. Wainwright.
                                                                     In your testimony, you stated that statistically significant dis-
                                                                  parities facing minority-owned and women-owned businesses per-
                                                                  sist to this day, according to research, and looking at the dispari-
                                                                  ties, what gaps do you feel your research reveals where the DBE
                                                                  program could be used to further reduce the existing and currently
                                                                  present disparities?
                                                                     Mr. WAINWRIGHT. I want to make sure I understand your ques-
                                                                  tion, Representative. Is it what more could the DBE program be
                                                                  doing?
                                                                     Mrs. FLETCHER. Yes. I mean, does your research reveal gaps
                                                                  where the DBE program could be used to further reduce the con-
                                                                  tinuing and existing disparities?
                                                                     And very quickly. I think I have gone over my time here.
                                                                     Mr. WAINWRIGHT. Yes. It is kind of a policy question, a little bit
                                                                  out of my wheelhouse. I guess I would say quickly, seeing these
                                                                  programs, there are still a lot of cities and counties and States
                                                                  around the country that do not run comparable programs, and it
                                                                  would be nice, and as one of them I would say also within the Fed-
                                                                  eral Government outside U.S. DOT.




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                                                                     So it would be good to see a more consistent and widespread ef-
                                                                  fort to promote contracting diversity in the public sector and, of
                                                                  course, to see that spill over into the private sector.
                                                                     Ms. NORTON. I thank the gentleman.
                                                                     Mrs. FLETCHER. Thank you very much, Dr. Wainwright, and
                                                                  Madam Chairwoman, I yield back.
                                                                     Ms. NORTON. I thank the gentlelady for her question.
                                                                     Representative Espaillat.
                                                                     Representative Espaillat, are you muted?
                                                                     Mr. ESPAILLAT. Yes, I am here.
                                                                     Ms. NORTON. All right.
                                                                     Mr. ESPAILLAT. How are you?
                                                                     Ms. NORTON. Go ahead.
                                                                     Mr. ESPAILLAT. Yes. Thank you, Madam Chair, and thank you to
                                                                  all the panelists for being here.
                                                                     This is an incredibly important hearing. I am grateful to come
                                                                  from a State and a city like New York which has programs in the
                                                                  transportation and construction sector that go well beyond the re-
                                                                  quirements of disadvantaged business enterprises. But there are so
                                                                  many underlying issues that I believe we need to address.
                                                                     Last year I held a meeting with my local Transportation Task
                                                                  Force to discuss better inclusion of DBEs. I have had our local con-
                                                                  tractors association provide us a thorough examination to a num-
                                                                  ber of community groups and leaders so they could ensure small
                                                                  businesses in the city have a good sense of how the DBE program
                                                                  works.
                                                                     One of the biggest take-aways from the meeting was that even
                                                                  though New York is full of diversity and has very aggressive diver-
                                                                  sity goals, there is still a pipeline issue in the construction sector.
                                                                     That is why I am working closely with former congressman
                                                                  Charlie Rangel and City College of New York to develop a state-
                                                                  of-the-art infrastructure training program because we feel that
                                                                  there is just not enough young people particularly ready for the po-
                                                                  tential jobs that may be coming towards the future.
                                                                     So I believe that as we invest in infrastructure, we also need to
                                                                  invest in training the diverse field of candidates for the jobs that
                                                                  will come along the way.
                                                                     Another issue has been brought to my attention is the NAICS
                                                                  issue. The NAICS size standard negatively impacts the ability of
                                                                  DBEs to grow.
                                                                     So I want to ask the panelists: have you faced similar issues?
                                                                     Do you believe that changes need to be made to the INVEST in
                                                                  America Act to sufficiently resolve these issues?
                                                                     And is there more that we can do to ensure that DBEs are not
                                                                  held back?
                                                                     Any of the panelists.
                                                                     Ms. WILLIAMS. This is Eve Williams.
                                                                     I would like to address the NAICS standards on senior [inaudi-
                                                                  ble] architectural services, and it puzzles me as to why engineering
                                                                  [inaudible] service. The engineering cap on gross revenue is some-
                                                                  where near $14 million over an average 3-year period, but yet engi-
                                                                  neering architecture services are near $7 million.




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                                                                     I think in speaking for the architects, I think that they are se-
                                                                  verely held back because of the NAICS code standards or cap on
                                                                  just architectural services.
                                                                     Mr. ALI. Yes, this is Farad Ali from AMAC.
                                                                     I would say that there needs to be some real evaluation of what
                                                                  Ms. Williams was talking about earlier, which is personal net
                                                                  worth. I think it is unreasonable to believe. I think you create some
                                                                  kind of economic discrimination by keeping the number so low and
                                                                  then expect for businesses to, quote, unquote, ‘‘graduate’’ or to ‘‘per-
                                                                  form better.’’
                                                                     It is hard to continue to have a small net worth and expect that
                                                                  people can grow to $30 million or $40 million or $15 million. I
                                                                  mean, it is almost unreasonable.
                                                                     That is the problem that we ran into in the car rental industry
                                                                  because you have got a $1.3 million net worth requirement, net
                                                                  standard, that means you cannot have over that, but yet you have
                                                                  the cars.
                                                                     If you wanted to be a dealer for rental cars when you have got
                                                                  $50 million of rental cars, if you only have a net worth of $1.3 mil-
                                                                  lion, you could not even get a contract to do that work.
                                                                     So I think there should be some real intensive studies on under-
                                                                  standing the impact of keeping the net worth at its current level
                                                                  and how that has also created some economic discrimination until
                                                                  you start really raising that so people can have growth and share
                                                                  in the prosperity.
                                                                     Mr. ESPAILLAT. Anything on the pipeline issue from anybody or
                                                                  do you find that there are not enough trained folks for the jobs that
                                                                  may be coming our way in the future?
                                                                     And what can we do about it?
                                                                     Mr. MCDONALD. No, the pipeline actually is an issue, and you
                                                                  are absolutely correct.
                                                                     So we are working here within our State and with our county to
                                                                  expand our apprenticeship program in addition to what we are try-
                                                                  ing to do to prepare for DBEs.
                                                                     As the county we, too, just decided that we are going to align our
                                                                  own county procurement with apprenticeship, requiring primes to
                                                                  use a percentage of their activity with the contracts they win from
                                                                  the county to be done with apprenticeship.
                                                                     So we are believing that we are going to able to grow that in a
                                                                  similar manner over with the DBE, but the pipeline is an issue
                                                                  that we are trying to address right now because we do not have
                                                                  disciplines as we go forward and infrastructure begins to grow and
                                                                  bloom as opportunities for small businesses.
                                                                     Mr. ESPAILLAT. Thank you, Madam Chair. I yield back.
                                                                     Ms. NORTON. I thank the gentleman for his question.
                                                                     Representative Garcı́a? Representative Garcı́a? Are you muted or
                                                                  are you present?
                                                                     [No response.]
                                                                     Ms. NORTON. Then I am going to move on to Representative
                                                                  Cohen.
                                                                     Representative Cohen, are you muted?
                                                                     [No response.]
                                                                     Ms. NORTON. Then the last Member who has not been heard is
                                                                  Representative Carson.




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                                                                     Representative Carson, are you muted?
                                                                     [No response.]
                                                                     Ms. NORTON. I want to thank all of the witnesses for their testi-
                                                                  mony today. I think this hearing has been very telling and essen-
                                                                  tial.
                                                                     It was particularly essential this year when we are seeing dem-
                                                                  onstrations over racial discrimination. It is one thing to dem-
                                                                  onstrate to take down a Confederate statute that was erected dec-
                                                                  ades ago and be successful at that.
                                                                     It is quite another thing to make sure to raise up the ability of
                                                                  minorities and women to participate in Government programs.
                                                                     That is an issue for today and in keeping with the kinds of reck-
                                                                  oning that are happening in our country.
                                                                     The comments of our witnesses today have been very helpful.
                                                                  They will be taken into consideration, especially your comments
                                                                  calling for changes in the statute itself.
                                                                     I want to thank each of the witnesses for your testimony, your
                                                                  very informative and helpful testimony.
                                                                     I ask unanimous consent that the record of today’s hearing re-
                                                                  main open until such time as our witnesses have provided answers
                                                                  to any questions that may be submitted to them in writing.
                                                                     I also ask unanimous consent that the record remain open for 15
                                                                  days for any additional comments and information submitted by
                                                                  Members or witnesses to be included in the record of the day’s
                                                                  hearing.
                                                                     Without objection, so ordered.
                                                                     If no other Members have anything to add, the committee stands
                                                                  adjourned.
                                                                     Thank you very much.
                                                                     [Whereupon, at 1 p.m., the committee was adjourned.]




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                                                                                          SUBMISSIONS FOR THE RECORD

                                                                       Prepared Statement of Hon. Eddie Bernice Johnson, a Representative in
                                                                                        Congress from the State of Texas
                                                                     Almost four decades ago, the Disadvantaged Business Enterprise program was en-
                                                                  acted to address the stubborn and harmful institutionalized bias and systemic rac-
                                                                  ism people of color were facing in the transportation industry. Since its enactment,
                                                                  the program has made progress, but that progress has been far too slow. This com-
                                                                  mittee has collected enormous amounts of evidence that illustrates just how difficult
                                                                  it is for DBEs to succeed in today’s environment. The bottom line is that DBEs must
                                                                  fight twice as hard and still usually end up getting far less money than goes to
                                                                  firms owned by non-minority males.
                                                                     Discrimination greatly increases the difficulty for women and minority owned
                                                                  firms to succeed. A recently published disparity study conducted for the Texas De-
                                                                  partment of Transportation used Census data to examine this issue. The study
                                                                  found that the business formation rate for white males was 5.4 percent, but the rate
                                                                  for African Americans was less than a third of that—1.6 percent. For Hispanic
                                                                  Americans it was 2 percent, for Native Americans it was 2.9 percent, and for white
                                                                  women it was 3.1 percent. For Asian/Pacific Islanders it was better—5.2 percent but
                                                                  still lower than for white males.1
                                                                     The disparities for firm formation in construction in Texas were even worse.
                                                                  White men formed construction firms at a rate of 10.3 percent, but for Asian/Pacific
                                                                  Islanders the rate was only 9.5 percent. For white women it was 8.9 percent.
                                                                  Shockingly the construction firm formation rates for Native Americans, Hispanic
                                                                  Americans and African Americans were 4.9 percent, 3.5 percent and 2.9 percent re-
                                                                  spectively.
                                                                     Think about what this means—as bad as the economic disparities are for firms
                                                                  owned by minorities and women, the current data actually understates the problem,
                                                                  since it doesn’t take into consideration all the firms that could never even get off
                                                                  the ground. How can minorities and women ever erase the gaps in business inequal-
                                                                  ity if discrimination keeps them from even forming the businesses they need to com-
                                                                  pete?
                                                                     This is exactly what makes the DBE program so important—while it doesn’t fully
                                                                  level the playing field, it provides a demand for businesses owned by minorities and
                                                                  women and gives those businesses that do exist at least a fighting chance to com-
                                                                  pete.
                                                                     It is my hope that this hearing today will help us better understand the impor-
                                                                  tance of this program along with the areas where this program can be improved
                                                                  upon. I look forward to hearing from our witnesses. Thank you.

                                                                                                             f

                                                                        Prepared Statement of Hon. Rick Larsen, a Representative in Congress
                                                                       from the State of Washington, and Chairman, Subcommittee on Aviation
                                                                    Thank you, Chair DeFazio and Subcommittee Chair Norton, for holding today’s
                                                                  hearing on the importance of the U.S. Department of Transportation’s Disadvan-
                                                                  taged Business Enterprise (DBE) Program.
                                                                    Women and minority-owned businesses are fundamental to economic growth in
                                                                  Northwest Washington and the success of U.S. transportation.
                                                                    I saw this firsthand when I met with Marques Warren of Warren’s News and
                                                                  Gifts at SeaTac Airport in Seattle.

                                                                    1 Texas Department of Transportation Disparity Study 2019, Colette Holt & Associates, 2019,
                                                                  at 133.
                                                                                                                  (133)




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                                                                                                                  134
                                                                     Marques’ father, Ardie Warren, opened the family’s first store, Northwest Encoun-
                                                                  ter, at SeaTac in 1994. The news and gift store has now grown to 18 locations in
                                                                  the airport in partnership with the Hudson Group.
                                                                     To launch their business, the Warrens depended on Airport Concessions Dis-
                                                                  advantaged Business Enterprise (ACDBE) loans, which help level the playing field
                                                                  for airport concessionaires.
                                                                     The needs of U.S. transportation industry are as diverse as the passengers it
                                                                  serves.
                                                                     Congress must work to improve equity in the industry and increase economic op-
                                                                  portunity for women and minority business owners.
                                                                     One of the ways Congress can support these efforts is through preserving and im-
                                                                  proving the Disadvantaged Business Enterprise (DBE) Program.
                                                                     According to the American Community Survey, women and minorities signifi-
                                                                  cantly establish fewer businesses and earn less from those businesses than their
                                                                  white male counterparts.
                                                                     To address these disparities, the DBE program aims to increase the participation
                                                                  of women and minority-owned businesses in federally funded transportation and in-
                                                                  frastructure projects.
                                                                     The Port of Seattle is one example of the DBE program’s positive impact.
                                                                     According to the Port, DBE firms received more than $4.9 million for work per-
                                                                  formed on Federal Aviation Administration (FAA) funded projects, including taxi-
                                                                  way improvements and residential noise insulation.
                                                                     The Port’s Diversity in Contracting program tripled the number of women and mi-
                                                                  nority-owned businesses doing business with the Port. Last year, the program met
                                                                  its five-year goal of increasing the amount of spend on these contracts to 15 percent.
                                                                     The DBE program is key to improving economic opportunity for small businesses
                                                                  in U.S. transportation, but Congress can do more to meet the needs of women and
                                                                  minority entrepreneurs.
                                                                     Last year, the Washington State Department of Transportation (WSDOT) con-
                                                                  ducted a disparity study, which found:
                                                                     • Smaller airports want more assistance from the FAA and WSDOT to increase
                                                                        DBE participation; and
                                                                     • Without the program, DBEs would be effectively shut out of the market with
                                                                        devastating impacts to these businesses, among other conclusions.
                                                                     I look forward to hearing from today’s witnesses, including the Airport Minority
                                                                  Advisory Council (AMAC), regarding the critical need to continue the DBE program
                                                                  and ways to improve it for women and minority-owned businesses, particularly in
                                                                  aviation.
                                                                     Diversity in hiring and contracting is essential to strengthening the nation’s
                                                                  transportation and infrastructure, and to keep the country competitive in the global
                                                                  market.
                                                                     Today’s witnesses are important partners in these efforts.

                                                                                                            f

                                                                  Letter of July 13, 2020, from Lawrence T. Green, President, Divine Cement,
                                                                            Inc., Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                   JULY 13, 2020.
                                                                  Mr. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                      resentatives, Washington, DC.
                                                                  Re: In Response to the Request from the Committee on Transportation and Infra-
                                                                  structure for a Letter or Statement on the Disadvantaged Business Enterprise Pro-
                                                                  gram
                                                                    DEAR CHAIRMAN DEFAZIO,
                                                                    Construction is an area that has historically excluded black workers. This in-
                                                                  cludes the unionized portion of the industry. Giving minority workers access to good
                                                                  paying jobs has always been an important part of closing our large and persistent
                                                                  racial wage inequities. This is a critical issue that must be addressed and resolved.
                                                                  Trade unions have had a complicated and often ugly history with race. That history
                                                                  has helped shut blacks and Hispanics out of these highly coveted lines of work.
                                                                    I have worked in the construction industry since the age of sixteen. I worked as
                                                                  a cement finisher another sixteen years before starting my own company, Divine Ce-
                                                                  ment, Inc.




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                                                                                                                  135
                                                                     The construction trade has always been employment set aside for predominately
                                                                  Caucasian men. During high school, I remember vividly my white counterparts
                                                                  landing summer jobs in the trades while my black and hispanic counterparts
                                                                  worked in the fast food industry or retail such as clothing and shoe stores at the
                                                                  local mall.
                                                                     In June 1971 the New York Times wrote, ‘‘The building of houses, offices and fac-
                                                                  tories, of bridges and dams and highways is still largely white man’s work in Amer-
                                                                  ica.’’
                                                                     Despite Government-imposed quotas and timetables, despite voluntary ‘‘hometown
                                                                  solutions’’ and ‘‘outreach’’ programs to train inner-city youths along with seemingly
                                                                  constant litigation, the number of black and other minority workers entering the
                                                                  construction industry remains a thin trickle.
                                                                     There is some evidence that these efforts have forced open the door to employ-
                                                                  ment in the construction trades at least a crack. The number of blacks now entering
                                                                  construction jobs is still insignificant in terms of their need for employment and
                                                                  higher income. The crack is so insignificant, light can’t shine through.
                                                                     According to a 2018 Crain’s New York Business article, ‘‘In 2015, the Center for
                                                                  Union Facts, released data on the racial pay disparities in the construction unions.
                                                                  We noted that only 25% of unionized construction workers were black, compared
                                                                  with 53% and 43% in the health care and transportation sectors, respectively. Addi-
                                                                  tionally, we found white workers were getting better-paid job assignments than mi-
                                                                  norities, who often had lower-paying apprenticeships. Fast forward to current re-
                                                                  search and those figures confirms there has been little to no change.’’
                                                                     The reasons for Black invisibility at street construction sites are racist exclusion,
                                                                  cheap labor, and the refusal of city and county officials to enforce anti-discrimina-
                                                                  tion labor laws. While the laws are in place, they are routinely circumvented allow-
                                                                  ing discrimination to continue. But most importantly, the reason is racist exclusion
                                                                  and it starts with the unions. The long history of racial closed doors toward African
                                                                  Americans in the trades is well-known and documented with construction at the top
                                                                  of the list. These are the plum paying and plum benefit jobs in the construction in-
                                                                  dustry. They have long been jealously guarded as the sole preserve of blue-collar
                                                                  whites as cited in ‘‘The Hutchinson Report’’ by author and political analyst Earl
                                                                  Ofari Hutchinson.
                                                                     Some of my personal experiences begin with unfair practice of how and when mo-
                                                                  bilization is paid out. When my company is selected as the subcontractor, we have
                                                                  a significant amount of work to perform and rely on mobilization monies to pur-
                                                                  chase equipment and materials to start the job. We are forced to wait until two
                                                                  weeks prior to the scope of work starting before being paid mobilization. Often
                                                                  times, we do not receive mobilization until after the scope of work has begun.
                                                                     More importantly, we are forced to wait sometimes months after the general con-
                                                                  tractor is paid before we receive payment. More times than not, we are forced to
                                                                  call the general contractor numerous times requesting we be paid and this is after
                                                                  confirming they have been paid by the owner. It is extremely frustrating to complete
                                                                  a job on or ahead of schedule, with complete satisfaction of the general contractor
                                                                  only to be sent a perceived message of, ‘‘You’ll get paid when I feel like paying you
                                                                  and not a day before!’’ It is extremely disheartening.
                                                                     The DBE Program has enhanced Divine’s opportunities in the highway, transit,
                                                                  and airport construction industries simply by existing. The consequences of not hav-
                                                                  ing the program would be our business would not exist. But for the Disadvantage
                                                                  Business Enterprise and the requirements to use minority owned businesses, Divine
                                                                  Cement, Inc. would not a reality because general contractors would self-perform.
                                                                     Securing working capital is extremely difficult for minority owned businesses. Per-
                                                                  sonally, I am repeatedly forced to secure loans with interest rates that mirror loans
                                                                  from merchant cash advances. While the interest rates are uncomfortably high, the
                                                                  loans are necessary to make payroll and purchase the equipment and materials
                                                                  needed to perform the job in the absence of mobilization.
                                                                     Our saving grace has been that the consistent superior quality of work Divine Ce-
                                                                  ment provides has afforded us the opportunity for additional work. Moreover, addi-
                                                                  tional contracts are awarded after the realization that Divine Cement’s performance
                                                                  surpasses expectation. One of the visions of Divine is to create a state-of-the-art
                                                                  training center to equip other minorities to provide a more diverse group of highly
                                                                  trained and qualified tradesmen thereby opening the door for my more successful
                                                                  minority owned companies like Divine Cement, Inc.
                                                                        Sincerely,
                                                                                                                             LAWRENCE T. GREEN,
                                                                                                                         President, Divine Cement, Inc.




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                                                                  Letter of July 15, 2020, from Linda Moen, P.E., LEED BD+C, President and
                                                                   Managing Member, EFK Moen, Submitted for the Record by Hon. Peter
                                                                   A. DeFazio
                                                                                                                                         JULY 15, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chair,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                       resentatives, Washington, DC.
                                                                  Re: Request from the Committee on Transportation and Infrastructure on the Dis-
                                                                  advantaged Business Enterprise (DBE) Program
                                                                     DEAR MR. DEFAZIO,
                                                                     My company, EFK Moen, is a woman-owned civil engineering design firm with of-
                                                                  fices in Missouri, Illinois, and Georgia. I own 57% of the company and I worked in
                                                                  the public sector as a highway design engineer, project leader and regional design
                                                                  & operations manager for 13 years before starting my company. I have a strong
                                                                  background in highway design and in management of public highway projects, but
                                                                  it was still difficult for me to get approval in the DBE program—the state Depart-
                                                                  ment of Transportation (DOT) I first applied for DBE certification with challenged
                                                                  me to prove that my father (a retired construction engineer with no design experi-
                                                                  ence and no involvement with my company) or the other men who worked at my
                                                                  company were not the ‘‘brains’’ or ‘‘influencers’’ of my company. I stood firm, over-
                                                                  came those hurdles and have been in business for over 22 years (1998 to the
                                                                  present). I have grown my company from 4 to 54 engineers and surveyors; with 5
                                                                  offices in Missouri-Illinois-Georgia; and EFK Moen has a respected position in the
                                                                  industry as an experienced design firm capable of leading large highway and bridge
                                                                  infrastructure projects and as a valued teaming partner with other national civil en-
                                                                  gineering design firms. Without the DBE program, I expect I would be dabbling on
                                                                  very small project assignments or I would be out of business.
                                                                     The construction industry is built on managing risk and trusting that others will
                                                                  be able to do their job well and contribute to a project’s profitability. For an agency
                                                                  or a prime contractor to take a chance on a new/unknown/small firm there needs
                                                                  to be an incentive. Women-owned and Minority-owned firms are ‘‘unknowns’’ be-
                                                                  cause we are seen as strangers to this industry—still after over 30 years of DBE–
                                                                  MBE–WBE programs—because we do not fit the typical image of construction work-
                                                                  ers and project managers. There are individuals who are interested in giving firms
                                                                  a chance, but when they see it could impact their bottom line it is a very hard call
                                                                  to make without an incentive. The DBE program provides incentive and has been
                                                                  very successful in the markets I work in. The program gives me enough value-poten-
                                                                  tial to have the initial discussions with a potential client—whether that is an agen-
                                                                  cy or prime contractor/consultant. Then my company can prove that we are capable
                                                                  and have value on our own, beyond the DBE incentives. We can build relationships
                                                                  that break the pattern and help women and minorities become part of the ‘‘face of
                                                                  the industry’’. EFK Moen has successfully become one of the top engineering design
                                                                  firms in the Missouri public works market with MoDOT and with local counties and
                                                                  municipalities; we have successfully become a valued part of the very large engi-
                                                                  neering design industry in Illinois; and we are starting out strong in the Georgia
                                                                  engineering public highway and bridge design market. In each new market, our
                                                                  DBE certification has provided us opportunities to team with other engineering
                                                                  firms and prove our value.
                                                                     The DBE programs run by the state DOT’s we work with are very strong, inclu-
                                                                  sive and ethical. The DOTs provide training opportunities on how to do business
                                                                  with government agencies (which is quite a bit different than doing private work)
                                                                  and facilitate introductions to prime firms in the industry. Business owners in the
                                                                  program support each other and support the philosophy of bringing other disadvan-
                                                                  taged people and firms into the industry. The FHWA and state DOT commitment
                                                                  to the program sets the tone for the industry to value the program also, and to
                                                                  strive to build up the industry’s woman-owned and minority-owned firms to match/
                                                                  represent the communities where those tax dollars are spent. The state success in
                                                                  supporting capable DBE firms creates a pool of women-owned and minority-owned
                                                                  firms who are available to do work in their region on projects outside the program
                                                                  also.
                                                                     The culture created by the DBE program is valuable to our industry and supports
                                                                  a healthy inclusive environment for firms and for diverse individuals who are
                                                                  under-represented in our industry. Engineers’ and surveyors’ potential is not based




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                                                                  on their skin tone, ethnicity, culture or gender—success in technical fields is based
                                                                  on a love of problem solving. Encouraging diversity in our industry pushes that re-
                                                                  ality forward and teaches us not to judge a person’s capabilities based on the ap-
                                                                  pearance of other capable engineers we have worked with in the past. As in any
                                                                  process, it is ‘‘easier’’ to continue the status quo, to continue doing business with
                                                                  the same type of people you have always worked with. But the reward for the com-
                                                                  munity comes when we try a little harder and reach out with opportunities for ev-
                                                                  eryone.
                                                                    Thank you for accepting my letter of support for the DBE program. It has been
                                                                  very valuable to me, to my company, to the engineering/construction industry and
                                                                  to our community.
                                                                       With warm regards,
                                                                                                                  LINDA MOEN, P.E., LEED BD+C,
                                                                                                          President and Managing Member, EFK Moen.

                                                                                                            f

                                                                  Letter of July 1, 2020, from Carla M. Williams, DBELO, Director of Commu-
                                                                   nity and Business Engagement, Hillsborough Area Regional Transit Au-
                                                                   thority, and President, COMTO Central Florida Chapter, Submitted for
                                                                   the Record by Hon. Peter A. DeFazio
                                                                                                                                    JULY 1, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chair,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                     resentatives, Washington, DC.
                                                                  RE: The Hillsborough Transit Authority’s (HART) Support for the Reauthorization
                                                                       of the DOT’s DBE Program
                                                                    The Hillsborough Transit Authority’s (HART) is responding to the request from
                                                                  the Committee on Transportation and Infrastructure for a statement on the Dis-
                                                                  advantaged Business Enterprise Program.
                                                                    The DBE program has enhanced transit in the Tampa Bay area, in Florida. Over
                                                                  a ten-year period (2010–2019), awards, with federal dollars to primes averaged
                                                                  about $4.1 million, while about 11.1% of $4.1 million went to DBE’s. The major con-
                                                                  struction projects during this period (2010–2013) included:
                                                                    • CNG Fueling Facility
                                                                    • TECO Streetcar Line Phase II
                                                                    Contracts to DBE’s spiked in 2011 to 108 DBE’s. The final construction was com-
                                                                  pleted by 2014 and overall federal funds levelled off after 2015 to average about 14.6
                                                                  DBE contract awards.

                                                                        CONSEQUENCES IF THE PROGRAM WERE NOT TO RECEIVE REAUTHORIZATION
                                                                    It would be unimaginable to discontinue the DBE program during these tumul-
                                                                  tuous, economic strained times. The COVID–19 crisis hit with people of color strug-
                                                                  gling to stay healthy, provide for their families, and keep their small businesses
                                                                  going, while still striving to stay safe from enforcement brutality or worst. The
                                                                  death toll of this pandemic has been reported to hit Black and Brown skinned peo-
                                                                  ple in the United States at a higher proportion than others. Removal of continued
                                                                  support to Disadvantaged businesses would be like adding an accelerant to an al-
                                                                  ready well burning fire.
                                                                    If the country’s goal is to maintain a level playing field, assistance is still needed
                                                                  for the minority disadvantaged business. Yes, there has been improvement since the
                                                                  1982 inception of the DBE program. However, the scale of fairness and the Good
                                                                  Ole Boy Network still is vibrant and not willing to yield to inclusion.
                                                                    Still most of the subcontracting opportunities on HART projects are only filled
                                                                  with a DBE when a goal is set because of federal funding (Race Conscious). HART
                                                                  has experienced a major, well-known and highly utilized company agreeing to hire
                                                                  DBE’s but backed out and said that the DBE was not cooperating on their expected
                                                                  salary. When in truth the DBE Company was never contacted and the conversation
                                                                  about salary never took place. The prime contractor found a non-DBE with a similar
                                                                  name and attempted to pass the company off as the DBE. This deviousness only
                                                                  surfaced when the DBE firm called the HART DBE Coordinator to ask what was
                                                                  going on and when they could expect to start work.




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                                                                                                       PROCUREMENT ISSUES
                                                                  Issue 1: Open and Transparent Communication of Informing DBE’s of Upcoming Op-
                                                                       portunities
                                                                     Notifying DBE’s on regular solicitation lists. Currently DBE’s, registered in the
                                                                  HART Vendor System, are not notified automatically when opportunities arise. The
                                                                  solicitations are advertised on the HART website, however since the procurement
                                                                  solicitation is not linked to the vendor registration system it can’t automatically
                                                                  search for vendors with the NAICS codes.
                                                                     The vendor is required to download the bonfire software to their individual com-
                                                                  puter for automatic notifications and to get details of a solicitation.
                                                                     Our DBE staff is collaborating with the Procurement Department to improve the
                                                                  process to ensure the information can be transmitted to qualified DBE’s, who are
                                                                  registered in the HART Vendor System in a timely manner so that they are aware
                                                                  of the bid opportunities and have time to prepare the appropriate paperwork.
                                                                  Issue 2: Good Faith Efforts to Sub-Contract DBE’s
                                                                    DBE Goal Waived by the Director of Procurement: HART experienced a prime con-
                                                                  tractor who came unbelievably close to the project’s Independent Cost Estimation.
                                                                  The eligible, federally funded project allowed for a DBE goal. When the solicitation
                                                                  was examined none of the selected subcontractors were Unified Certification Pro-
                                                                  gram (UCP) DBE’s. This procurement required the use of the Good Faith Efforts
                                                                  clause. After efforts were made to obtain UCP DBE’s and the results were exam-
                                                                  ined, the additional expense to the prime contractor would have been $66. HART
                                                                  DBE Compliance ruled the additional price was not sufficient enough to stop the
                                                                  use of UCP DBE’s on the project. The Procurement Director had the last say. The
                                                                  Procurement Director ruled the prime contractor had completed all that was asked
                                                                  of them and because of that, the utilization of DBE’s on the project was not re-
                                                                  quired.
                                                                    Dropping DBE subcontractors from projects: After collaborating with Hillsborough
                                                                  County DBE staff, they saw a pattern where the same Prime Contractors solicit bids
                                                                  naming the DBE on their contract and later on dropped the DBE from the project.
                                                                  While it may be a legitimate reason, there may be a need to be notified by procure-
                                                                  ment staff at the time of solicitation when the same Prime Contractor keeps repeat-
                                                                  ing the pattern.
                                                                    Continuing the DBE Program will assist HART in continuing to make transit a
                                                                  viable travel option for residents within the Tampa Bay Region and attaining the
                                                                  objective to support transit projects that promote economic development and job cre-
                                                                  ation. HART strongly supports the continuation of the DBE Program.
                                                                       Sincerely,
                                                                                                                     CARLA M. WILLIAMS, DBELO,
                                                                       Director of Community and Business Engagement, Hillsborough Area Regional
                                                                                                                                   Transit Authority.
                                                                                                          President, COMTO Central Florida Chapter.

                                                                                                            f

                                                                   Letter of September 19, 2020, from Colette Holt, Colette Holt & Associates,
                                                                               Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                               SEPTEMBER 19, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                       resentatives Washington, DC.
                                                                    DEAR CHAIRMAN DEFAZIO:
                                                                    I write in support of the continuation of the Disadvantaged Business Enterprise
                                                                  program for federally-assisted transportation projects. My law and consulting firm,
                                                                  Colette Holt & Associates, has been involved in the DBE program and other con-
                                                                  tracting supplier diversity programs for over 25 years. I have conducted or partici-
                                                                  pated in over 75 high-quality disparity and availability studies in recent years.
                                                                  These research projects evaluated whether there was sufficient evidence of discrimi-
                                                                  nation for relevant jurisdictions to continue or to enact remedial race- and gender-
                                                                  based programs for public sector contracts. The statistical and anecdotal evidence
                                                                  gathered in these studies is necessary to support the use of race- and gender-con-
                                                                  scious goals to combat discrimination and to ensure that program elements meet ap-
                                                                  plicable constitutional standards.




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                                                                     This discussion focuses on the salient evidentiary findings that emerge from the
                                                                  following 23 Colette Holt & Associates studies. My conclusions are also informed by
                                                                  my decades of work with federal agencies, including USDOT and state and local
                                                                  government agencies across the country. Over 30 years of research reveals a stark
                                                                  truth:
                                                                       DBE goals remain necessary to ensure that minority- and woman-owned
                                                                       businesses have full and fair opportunities to compete for USDOT-funded
                                                                       contracts. Without goals, DBEs receive little to no work. There is also no
                                                                       doubt that the availability and capabilities of these firms are depressed by
                                                                       the effects of past and current race and gender discrimination. The DBE
                                                                       program therefore remains essential to ensure that the federal government
                                                                       does not function as a passive participant in ongoing discrimination in the
                                                                       market for USDOT-funded contracts.
                                                                     This finding is supported by two types of proof: 1. Quantitative or statistical evi-
                                                                  dence looks at the utilization and availability of minority and woman firms, and
                                                                  where necessary for agencies located in the Ninth Circuit Court of Appeals, dispari-
                                                                  ties between the utilization and availability of DBEs. 2. Qualitative or anecdotal
                                                                  data that describes the experiences of business owners in their market areas with
                                                                  discriminatory barriers.
                                                                       QUANTITATIVE EVIDENCE FROM RECENT COLETTE HOLT & ASSOCIATES DISPARITY
                                                                                                     STUDIES
                                                                     A high quality disparity or availability study provides detailed results of an anal-
                                                                  ysis of the recipient’s utilization of DBEs, measured in dollars paid as a percentage
                                                                  of all firms’ receipt of dollars paid. Contract records must include prime contract
                                                                  dollars and all subcontractor dollars, not just those paid to DBE subcontractors.
                                                                  These records must be examined at the 6-digit North American Industry Classifica-
                                                                  tion System (‘‘NAICS’’) code level to ensure the results are ‘‘narrowly tailored’’ to
                                                                  the recipient’s own contracting activities.
                                                                     Next, a study must estimate the availability of minority- and woman-owned busi-
                                                                  nesses at the 6-digit level in the recipient’s market area that provide the types of
                                                                  services and goods purchased by the recipient, as established by the utilization anal-
                                                                  ysis.
                                                                     Where there is a large gap between utilization and availability, the courts have
                                                                  held that such disparities can support an inference of discrimination. A ratio of 80
                                                                  percent or lower supports a prima facie inference that the cause of the disparity
                                                                  might be discrimination. This ‘‘disparity testing’’ is not required for recipients out-
                                                                  side the Ninth Circuit, since Congress, through the legislative process has pre-
                                                                  viously determined that discrimination constitutes a failure in the market for
                                                                  USDOT-funded contracts. Even where statistical analyses is not required, the gulf
                                                                  between the minority- and woman-owned firms that could have received dollars and
                                                                  the actual dollars such businesses received presents strong evidence that remedial
                                                                  intervention through the use of narrowly tailored DBE contract goals is necessary
                                                                  and supportable.
                                                                     It can also be illuminating to contrast the results of the DBE program, that uses
                                                                  contract goals to ensure equal opportunities, with programs in the same market
                                                                  area that do not take affirmative steps to remedy discrimination. Again, we found
                                                                  that without the use of goals, DBEs received little or no work.
                                                                     We have provided our studies to the Committee. Please allow me to highlight a
                                                                  few results:
                                                                     • Our 2017 Disparity Study for the Washington State Department of Transpor-
                                                                        tation (‘‘WSDOT’’) found that DBEs received dollars close to their availability
                                                                        on Federal Highway Administration funded contracts: DBE availability was
                                                                        13.80 percent, and they were paid 12.90 percent of the dollars, yielding a dis-
                                                                        parity ratio of 93.30 percent. However, on state-funded highway construction
                                                                        projects on which WSDOT is prohibited from setting race- and gender-conscious
                                                                        goals by a state constitutional amendment, DBE availability was 19.0 percent 1,
                                                                        but they received only 6.40 percent of the dollars, yielding a disparity ratio of
                                                                        33.50 percent. Clearly, the use of goals is what drove the FHWA results.
                                                                     • Even when DBE contract goals are set, disadvantaged firms often received sig-
                                                                        nificantly less than would be expected in a discrimination-free market. For ex-
                                                                        ample, DBEs constituted 8.90 percent of the firms available to perform on
                                                                        FHWA-funded contracts awarded by the Texas Department of Transportation in

                                                                   1 The availability estimates vary by funding source because the types of contracts are some-
                                                                  what different in scope and scale.




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                                                                       our 2019 Disparity Study, yet their availability was 28.10 percent, yielding a
                                                                       disparity ratio of 31.67 percent.
                                                                    • Our 2019 State of Washington Disparity Study, which examined state-funded
                                                                       contracts other than for highway construction, found that minority and woman
                                                                       firms constituted 16.53 percent of the available firms but received only 9.00 per-
                                                                       cent of the dollars, for a disparity ratio of 54.43 percent.
                                                                    • Even in the FHWA DBE program, DBEs, especially Black-owned businesses,
                                                                       often received few dollars in the recipient’s core contracting activities. For ex-
                                                                       ample, in NAICS code 237310, Highway, Street and Bridge Construction, non-
                                                                       DBEs received 94 percent of contract dollars from NCDOT; Blacks received 0.3
                                                                       percent. In the same subindustry in Washington State, non-DBEs received 88
                                                                       percent of contract dollars; Blacks received zero dollars. Likewise, in code
                                                                       237990, Other Heavy and Civil Engineering
                                                                    • Construction, non-DBEs received 100 percent of contract dollars from NCDOT;
                                                                       DBEs received nothing. In the same subindustry in Washington State, non-
                                                                       DBEs received 94 percent of contract dollars; Blacks received zero dollars.
                                                                    These and many more reports make it clear that discrimination continues to im-
                                                                  pede opportunities on the basis of race and gender, and that without the use of con-
                                                                  tract goals, the ‘‘playing field’’ for federal-aid contracts would remain tilted in favor
                                                                  of long established firms that enjoy the benefits of historic and ongoing structural
                                                                  exclusion that advantages White males.

                                                                       QUALITATIVE EVIDENCE FROM RECENT COLETTE HOLT & ASSOCIATES DISPARITY
                                                                                                     STUDIES
                                                                     Qualitative evidence gathered through surveys and personal interviews from
                                                                  these and other studies further supports the conclusion that racism and sexism con-
                                                                  tinue to impede the entrepreneurial aspirations of DBEs seeking government con-
                                                                  tracts. Some representative comments follow.
                                                                  Discriminatory Attitudes and Negative Perceptions of Competency and Profes-
                                                                       sionalism
                                                                     Many minority and women business owners reported that they continue to en-
                                                                  counter discriminatory attitudes, stereotypes and negative perceptions of their
                                                                  qualifications and core competencies and capabilities by other firms and government
                                                                  officials. Explicit and implicit biases impact their attempts to obtain contracts and
                                                                  to be treated equally. Respondents reported that White men frequently display neg-
                                                                  ative attitudes relative to their competency, skill, and professionalism.
                                                                       ‘‘When people meet me, [being an MBE] they assume certain things. As
                                                                       they get to know me and understand that I can speak construction, that
                                                                       I’m bilingual, that I speak engineering, then I get the comment, ‘Oh you’re
                                                                       different.’ Or, ‘You’re educated.’ ’’ (2019 Dallas Fort Worth Int’l Airport Dis-
                                                                       parity Study).
                                                                       ‘‘The perception is just there that if you’re Black or if you’re a woman you
                                                                       probably don’t know how to do X, Y, and Z type of work. So, they’ve already
                                                                       put [you] in that pigeonhole.’’ (2014 State of Missouri Disparity Study).
                                                                       ‘‘[State personnel] look down on us as some kind of beggars for percent-
                                                                       ages.’’ (2016 Illinois State Toll Highway Authority).
                                                                     Minority- and woman-owned businesses reported that they were perceived to lack
                                                                  the capacity to do additional or more complex work.
                                                                       ‘‘There is significant evidence that the larger the goals are, the higher the
                                                                       capacity building . . . . People will take the opportunities. Because we’re
                                                                       women or we’re minorities doesn’t mean that we’re not entrepreneurs and
                                                                       we don’t seize opportunity. It’s just that the opportunity doesn’t exist in the
                                                                       current market.’’ (2015 State of Illinois Disparity Study).
                                                                     Many women reported unfair treatment or sexual harassment in the workplace.
                                                                       ‘‘I still do find the initial contact with specifically, a general contractor,
                                                                       there is somewhat that attitude of you’re a woman, let me tell you how to
                                                                       do this.’’ (2019 Texas Dept. of Transportation Disparity Study).
                                                                       ‘‘I am the female, and they bring me like a tiny, little role in this large con-
                                                                       tract. They bring me to the interview to make the showing because I inter-
                                                                       view well and so they’re going to put me in front of people . . . Then no work
                                                                       comes out of it.’’ (2017 Washington State Department of Transportation
                                                                       Disparity Study).




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                                                                       ‘‘If you go into a construction zone, and you got wall-to-wall men construc-
                                                                       tion in concrete, whether it’s Mexican, it doesn’t matter, but you feel like
                                                                       you’re the only woman there. I got a gun with me all the time, all the time.’’
                                                                       (2019 State of Washington Disparity Study).
                                                                       ‘‘Let’s just be honest. I’m a woman who’s in construction so that just equals
                                                                       bulls’ eye . . . Other contractors who come in behind you and they call you
                                                                       [trade] chicks . . . Or, they tell you, what has the world come to because
                                                                       you’re [trade] chicks . . . Men come out and they complain that a woman is
                                                                       running the crew . . . Even the men that I hire—I’m giving you a pay-
                                                                       check—struggle with taking orders from a woman . . . Someone comes to the
                                                                       job and they go to one of the guys [I employ] and they say, are you the lead
                                                                       there?’’ (2016 Illinois State Toll Highway Authority).
                                                                       ‘‘ ‘Here comes that big titted blonde’. That’s what they’ll say, right out loud,
                                                                       in front of everybody. And all the guys will just laugh. And I’ve got to suck
                                                                       it up and just do my job . . . [Even my employees often won’t stand up for
                                                                       me.] If I react, that’s just going to make me more belittled and [look] petty.’’
                                                                       (2019 State of Washington Disparity Study).
                                                                  Access to Industry and Professional Networks
                                                                    Relationships are pivotal to obtaining public transportation work as subcontrac-
                                                                  tors and to opportunities to work as prime vendors. Both minority and women re-
                                                                  spondents reported difficulty in accessing networks and fostering relationships nec-
                                                                  essary for professional success and viability. Business owners frequently stated that
                                                                  there is a ‘‘good old boy’’ network. Barriers extended to agency staff; DBEs were un-
                                                                  able to gain access to and communicate with key agency decisionmakers.
                                                                       ‘‘The transportation industry as a whole is dominated by the civil engineers,
                                                                       which typically the folks graduating in civil engineering are White men.
                                                                       You have a very low proportion of women and minorities with those de-
                                                                       grees. Inherently, then in the workplace, you’re seeing very low amounts of
                                                                       diversity. Same thing in environmental services. You don’t get a lot of
                                                                       women who are wildlife biologists. Someone with that type of experience
                                                                       typically has been hunting and fishing with his father and his grandpa
                                                                       their entire lives and they have a good old boys club. They go drinking, they
                                                                       go fishing, they go playing golf.’’ (2019 Texas Department of Transportation
                                                                       Disparity Study).
                                                                       ‘‘It’s not being respected in the room, and it is body language. It’s relation-
                                                                       ships, which I heard over and over again here, as a side word for experi-
                                                                       ence. It’s really, ‘Do I have experience with you?’ And somebody I’m more
                                                                       comfortable with, because they look like me, I’m going to choose the person
                                                                       I’m more comfortable with because they look like me.’’ (2017 Washington
                                                                       State Department of Transportation Disparity Study).
                                                                       ‘‘People have relationships with people that they feel that they can identify
                                                                       with. And that might be a problem because they’re not willing to open the
                                                                       door for you and let you get in.’’ (2014 Metropolitan Nashville Airport Au-
                                                                       thority Disparity Study).
                                                                  Obtaining Work on an Equal Basis
                                                                    DBEs were in almost unanimous agreement that contract goals remain necessary
                                                                  to level the playing field and equalize opportunities. Without contract goals, they
                                                                  would receive little or no work. Race- and gender-neutral approaches alone are
                                                                  viewed as inadequate and unlikely to ensure a level playing field.
                                                                       ‘‘If those DBE goals had not been in there, we absolutely would not have
                                                                       been considered . . . . In fact, we were point blank told on a contract because
                                                                       they didn’t have a DBE goal of some kind, they didn’t even need to consider
                                                                       us.’’ (2014 Metropolitan Nashville Airport Authority Disparity Study).
                                                                       ‘‘I remember when the Tollway had no goals, and it was absolutely abys-
                                                                       mal. There was never a minority or a female that worked on a Tollway job,
                                                                       ever. And we would tell them, DOT has goals. They find women and mi-
                                                                       norities to do work. It’s the same kind of work that the Tollway does, and
                                                                       the DOT does. And it wasn’t until the Tollway started to have some goals
                                                                       that we started to get work on Tollway projects.’’ (2016 Illinois State Toll
                                                                       Highway Authority).
                                                                       ‘‘If there is no goal-setting, you don’t have any opportunity to perform as
                                                                       a subcontractor.’’ (2016 Kansas City Consortium Disparity Study).




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                                                                        ‘‘[Prime contractors] use us because they have to.’’ (2017 Washington State
                                                                        Department of Transportation Disparity Study).
                                                                        ‘‘If you’re not a DBE or HUB or SBE, you’re not going to be considered for
                                                                        any work as a consultant for TxDOT because they’re going to use these leg-
                                                                        acy firms for most of their work on the consulting side.’’ (2019 Texas Dept.
                                                                        of Transportation Disparity Study).

                                                                                                             CONCLUSION
                                                                    The findings from our studies and other reports provide strong quantitative and
                                                                  qualitative evidence that Congress has a strong basis in evidence to continue to re-
                                                                  quire recipients to implement the remedial DBE program. The studies provide proof
                                                                  of pervasive and systemic discrimination against women and minorities in the mar-
                                                                  ket for federal-aid contracts and support the need for appropriate race- and gender-
                                                                  conscious measures.
                                                                    Thank you for the opportunity to submit this information.
                                                                      Very truly yours,
                                                                                                                                 COLETTE HOLT,
                                                                                                                           Colette Holt & Associates.

                                                                                                            f

                                                                       Letter of June 16, 2020, from Katherine M. Cloonen, President, JK Steel
                                                                         Erectors, Inc., Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                  JUNE 16, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                     resentatives, Washington, DC.
                                                                    DEAR MR. DEFAZIO:
                                                                    Regarding the DBE program and discrimination faced by female contractors, I am
                                                                  writing to provide a few examples of how, after owning my own business for nearly
                                                                  thirty years, I, the female owner, still face discrimination in the construction field.
                                                                  My company specializes in the installation of structural steel and rebar. The fol-
                                                                  lowing examples punctuate the need to continue the DBE program in the 2020 high-
                                                                  way bill:
                                                                    • I asked a truck dealer for the bottom price on a pickup truck. A male employee
                                                                       called the same dealer for the bottom price on the same truck from the same
                                                                       sales rep, and he was able to get a lower price, even though my name was on
                                                                       the check written for the purchase.
                                                                    • A prime contractor calls asking for the estimator of the company. When I say
                                                                       that I am the estimator, the person hangs up the phone.
                                                                    • A salesperson calls and asks for the man in charge of buying the tools, and I
                                                                       say that I am the woman in charge of buying tools. The person hangs up the
                                                                       phone.
                                                                    • When I am owed money by a contractor, and I call to ask about the funds, the
                                                                       accounts payable person 1) is not available, 2) has misplaced my check, 3) has
                                                                       misplaced my invoice or other required paperwork, or 4) simply does not return
                                                                       my call. When a male employee from my company calls, the money suddenly
                                                                       is on its way.
                                                                    • The project manager of a prime contractor always called my foreperson, who
                                                                       was a male, for scheduling, he would not call me, even though I told him I was
                                                                       in charge of scheduling.
                                                                    • A male project manager lied in a meeting as to what was said in a phone con-
                                                                       versation with me. That particular lie cost me nearly $100,000 even though I
                                                                       stated he clearly lied.
                                                                    • After a deadline for a bid, I found that I was not asked to bid a project because
                                                                       they ‘‘don’t need no women on the job.’’
                                                                    • A contractor called and asked me if I wanted to make more money. Instead of
                                                                       giving me an invitation to bid, he invited me to a meeting to sell health and
                                                                       beauty products for a multi-level marketing company. I told him that if I had
                                                                       to sell the beauty products in order to be a subcontractor for him, I would not
                                                                       do it. I have not done business with that company since then.
                                                                    There are more examples over the years, but this is a sample of what still hap-
                                                                  pens in the construction industry. Thank you for your consideration.




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                                                                        Sincerely.
                                                                                                                                 KATHERINE M. CLOONEN,
                                                                                                                              President, JK Steel Erectors, Inc.

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                                                                   Letter of June 24, 2020, from Carol L. Kwan, Carol Kwan Consulting LLC,
                                                                              Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                  JUNE 24, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                     resentatives, Washington, DC.
                                                                  Subject: Testimony Regarding the Disadvantaged Business Enterprise Program
                                                                     DEAR MR. DEFAZIO:
                                                                     I am responding to the request from the Committee on Transportation and Infra-
                                                                  structure for a letter or statement on the Disadvantaged Business Enterprise (DBE)
                                                                  Program.
                                                                     My company began in 2003 after I was laid off from a large residential develop-
                                                                  ment corporation. My daughter was one-year old and had been very sickly, making
                                                                  it difficult for me to perform my duties reliably. It was a mutually agreed upon lay
                                                                  off. My former employer gave me a generous severance package and has been one
                                                                  of my clients occasionally since that time.
                                                                     For the first several years, I focused on private clients until my daughter became
                                                                  healthier. Beginning in 2008, I returned to working in construction, mostly smaller
                                                                  projects. Because of the recession, by 2011 most of my work had dried up. My net
                                                                  income that year was $4,000 and I considered myself lucky that it was in the black.
                                                                  I had become aware of the DBE program several years earlier but was busy enough
                                                                  at the time not to bother with it. Desperate times call for desperate measures, and
                                                                  I set about having my company certified as a DBE. That came through in 2012, and
                                                                  I started getting more work. Two large general contractors subcontracted with me
                                                                  on DBE projects, one with EPA funding and one with DOT funding. The first com-
                                                                  pany had contacted me for the EPA funded project. A year or so later, I was bidding
                                                                  on a non-DBE project and contacted the company about providing a bid. The man
                                                                  that I spoke with seemed reluctant, as though he doubted that I could do the work.
                                                                  I encounter that often as a woman working in construction. Fortunately, he checked
                                                                  with the project manager for the contract that I already had with the company, who
                                                                  vouched for me. I have had many contracts with both the first and second contrac-
                                                                  tors since then, both DBE and non-DBE projects.
                                                                     As a Certified Arborist, there are few of us who work in the construction industry
                                                                  here in Hawaii. My primary competitor has been doing this type of work for over
                                                                  five decades and was the first person that contractors thought of when they needed
                                                                  tree protection work. He is a nice man and highly qualified, but a formidable com-
                                                                  petitor for a company like mine that was trying to get established. The DBE pro-
                                                                  gram gave me a foot in the door in being able to compete against him. My net in-
                                                                  come (basically my salary as a 1-person company) has gone from around $40,000
                                                                  a year to around $80,000–$120,000 a year, a much more livable income in the State
                                                                  of Hawaii, in large part because of the network of clients that I have built as a DBE
                                                                  company.
                                                                     I still encounter contractors who refuse to hire a woman, either as a subcontractor
                                                                  or an employee. Some of these contractors are small, ethnic companies with cultural
                                                                  backgrounds that are strongly opposed to nontraditional roles for women. Occasion-
                                                                  ally one of them will hire me because they are desperate and are unable to find any-
                                                                  one else. It can make for an uncomfortable working situation, but I do it in part
                                                                  because I look at it as chipping away at their preconceived biases of what women
                                                                  can and cannot do. The DBE program helps to do that. By forcing contractors out
                                                                  of their comfort zone, it helps to chip away at societal biases and makes the playing
                                                                  field a little more level.
                                                                     I hope that Congress will act to continue the DBE program. It is worthwhile and
                                                                  it does make a difference. Should you have any questions or would like additional
                                                                  information, I can be reached at [redacted].
                                                                        Very truly yours,
                                                                                                                                   CAROL L. KWAN,
                                                                                                                          Carol Kwan Consulting LLC.




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                                                                  Letter of May 26, 2020, from Sarah Imberman, S. Levy Foods, Submitted for
                                                                                      the Record by Hon. Peter A. DeFazio
                                                                                                                                           MAY 26, 2020.
                                                                  To:     Peter DeFazio—Chairman of the House Committee on Transportation and
                                                                          Infrastructure
                                                                  Re:     Statement on the Disadvantage Business Enterprise Program
                                                                     DEAR MR. DEFAZIO,
                                                                     I am writing to convey the importance of the Disadvantage Business Enterprise
                                                                  (DBE) Program. I started my company in 2004, making chocolate out of my mom’s
                                                                  kitchen. After operating my bakery in Chicago for five years, I learned about the
                                                                  DBE program and first became certified as an Airport Concession Disadvantage
                                                                  Business Enterprise (ACDBE) in 2009.
                                                                     I have often felt discriminated against and treated differently because of the fact
                                                                  that I am a woman in business. I will never forget when the owner of a local Chi-
                                                                  cago bank asked for a meeting and wanted to discuss my decision to close my street
                                                                  side operation in order to focus on growing my business bringing local restaurants
                                                                  to airports. I remember leaving the meeting feeling like I had been ‘‘called into the
                                                                  principal’s office’’ as he said things to me like, ‘‘I think your decision was rash and
                                                                  immature.’’ Do I think he would have said this to me if I was a businessman instead
                                                                  of businesswoman? No. It turns out that closing my street side location to focus on
                                                                  growing the airport business was the best business decision that I had made, albeit
                                                                  an extremely difficult one. I am so fortunate that the ACDBE program exists, as
                                                                  it has allowed me to grow my business beyond my mom’s apartment and into seven
                                                                  airports across the country.
                                                                     I have benefited greatly from the DBE program and cannot imagine what my
                                                                  business would become without it. Because of the ACDBE program, I have a seat
                                                                  at the table in the airport industry, even when others don’t want me to.
                                                                       Sincerely,
                                                                                                                                  SARAH IMBERMAN,
                                                                                                                                          S. Levy Foods.

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                                                                   Letter of June 17, 2020, from Constance Macolino, President, Puget Sound
                                                                       Steel Co., Inc., Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                       JUNE 17, 2020.
                                                                  Mr. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                      resentatives, Washington, DC.
                                                                  RE: Disadvantaged Business Enterprise Program
                                                                    DEAR CHAIRMAN DEFAZIO:
                                                                    I am writing to you to request your support for the authorization of the DBE pro-
                                                                  gram in the upcoming 2020 highway bill. My firm is a reinforcing steel fabricator
                                                                  with over fifty years in business in the State of Washington and I can attest to the
                                                                  real need for this program for women-owned businesses in the transportation con-
                                                                  struction marketplace. The plain and simple fact is that disadvantaged businesses
                                                                  do not face a level playing field and continue to suffer discriminatory barriers to full
                                                                  and fair access to construction contracts.
                                                                    By way of illustration, in June of 2017, majority women were waived out of the
                                                                  WSDOT DBE program due to the results of a disparity study. In the two years
                                                                  prior, Puget Sound Steel was awarded a total of 23 contracts with WSDOT totaling
                                                                  almost 3,000 tons of steel and over $4,000,000.00 in revenue. Since June 2017, we
                                                                  have bid in excess of 7,000 tons of WSDOT work and have been awarded 1 job, for
                                                                  a total of 185 tons and $259,000.00 in revenue. Most, if not all, of that work went
                                                                  to public companies listed on the NYSE.
                                                                    Then there are the anecdotal examples of why this program is needed. Puget
                                                                  Sound Steel has supplied reinforcing steel to a number of prime contractors who do
                                                                  both commercial and civil work; when the primes don’t know we are a women owned
                                                                  business (commercial arena) we are awarded jobs based on price and past perform-
                                                                  ance. When we designate as a DBE (civil arena) and without set DBE goals on a
                                                                  given project, we are passed over for work. On multiple occasions I have had to ask




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                                                                  employees at the same company to please walk across the hall and tell their civil
                                                                  division that our firm is competent and able to perform the work on any given
                                                                  project.
                                                                     I cannot over-state how important this program is to small businesses, such as
                                                                  mine. Prime contractors, most of whom are owned publicly or by white males, al-
                                                                  ready receive almost ninety percent of federal contract dollars in construction. This
                                                                  program allows us the opportunity to participate, which is all we ask.
                                                                     I would welcome the opportunity to give additional information to your committee,
                                                                  if you would find that helpful, and thank you in advance for your continued support
                                                                  of this necessary program.
                                                                       Very truly yours,
                                                                                                                          CONSTANCE MACOLINO,
                                                                                                               President, Puget Sound Steel Co., Inc.

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                                                                  Letter of September 9, 2020, from Robert S. Bright, Founder and President,
                                                                  Talson Solutions, LLC, Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                  SEPTEMBER 9, 2020.
                                                                  Mr. MATT LEASURE,
                                                                  Special Assistant to the Chairman,
                                                                  House Committee on Transportation and Infrastructure.
                                                                  Re: Disadvantaged Business Enterprise Program—Personal Net Worth
                                                                     MR. LEASURE:
                                                                     I am pleased to submit my comments and suggestion for change to the Disadvan-
                                                                  taged Business Enterprise (DBE) Program. I am Robert S. Bright, Founder and
                                                                  President of Talson Solutions, LLC (Talson), a DBE, Minority Business Enterprise
                                                                  (MBE) and Small Business Enterprise (SBE). Founded in 2001 and headquartered
                                                                  in Philadelphia, Talson is a capital project consulting firm with domestic United
                                                                  States and international experience in the transportation and infrastructure indus-
                                                                  tries. Our clients include Allegheny Port Authority, LA Metro, New Jersey Transit,
                                                                  Panama Canal Authority, Sound Transit, and Denver International Airport to name
                                                                  a few.
                                                                     I wish to bring to your attention with the Personal Net Worth (PNW) requirement
                                                                  to establish and maintain the DBE status. In essence, the PNW requirement of $1.32
                                                                  million has not changed or been adjusted for inflation in approximately ten years.
                                                                  However, the price of labor, goods and services (Consumer Price Index) have in-
                                                                  creased. DBE’s PNW are typically based on the value of an owner’s retirement ac-
                                                                  count or other forms of investment that are not readily available without adverse
                                                                  tax consequences. As a result, the growth of these assets has significantly increased
                                                                  with advances in the United States stock market (i.e. S&P Index). As the value of
                                                                  the investment may increase, this potentially causes the PNW to increase without
                                                                  day-to-day management from the DBE owner. Although this may appear good, it is
                                                                  not for the DBE owner whom is worried about exceeding the initial PNW base and
                                                                  thereby losing the DBE status. The DBE owner is then forced to concentrate on the
                                                                  PNW value and not the business operation. In addition, the DBE owner may choose
                                                                  to take drastic steps or sell equities with tax disadvantages in order to maintain
                                                                  the required PNW. The loss of DBE status for many firms would cause irrevocable
                                                                  harm leading to business interruption and loss revenue preventing long-term firm
                                                                  growth for value generation.
                                                                     The State of Maryland Department of Transportation and New York recognized
                                                                  the need for increases in the PNW. As a DBE firm grows, the Owner’ s PNW typi-
                                                                  cally increases due to retirement investments and asset purchases. This allows the
                                                                  DBE to increase their confidence to take on greater risks and larger value contracts.
                                                                  However, if the DBE exceeds its PNW, there is a substantial risk that DBE partici-
                                                                  pation in future contracts will decrease due to the lack of the DBE certification. The
                                                                  following two examples reflect an adjustment by the Maryland Department of
                                                                  Transportation and a petition from New York on the need for changes in PNW:
                                                                     (1) In December 2019, The Maryland Department of Transportation announced
                                                                         that the Personal Net Worth (PNW) cap applied to the Minority Business En-
                                                                         terprise (MBE) Program will increase from $1,749,347 to $1,771,564, effective
                                                                         January 1, 2020. As required by Maryland law, the State’s MBE Program ad-
                                                                         justs its PNW cap annually based on the Consumer Price Index.
                                                                     (2) New York’s Governor Cuomo rejected a petition to eliminate the $3.5 million
                                                                         personal net worth requirement especially for those in both the construction
                                                                         and financial sectors, in order to grow and participate in government con-




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                                                                        tracts. These sectors have minimum income requirements that need to be met
                                                                        in order to be eligible to bid, win mid-size projects, and gain access to capital.
                                                                        It will also enable prime contractors to fulfill their 30% MWBE sub-con-
                                                                        tracting goal.
                                                                    Failure to adjust the PNW requirement prevents real growth for DBEs and the
                                                                  introduction of new DBEs. Additionally, without an annual PNW adjustment, the
                                                                  USDOT may fail to capture the importance of the overall DBE program by allowing
                                                                  DBEs to grow and build long-term investment in the business and communities in
                                                                  which we live.
                                                                    Thank you for your consideration to review the maximum PNW requirement for
                                                                  DBEs. Consideration for annual adjustment (i.e., Consumer Price Index) is strongly
                                                                  recommended and can only reflect current economic trends.
                                                                      Respectfully yours,
                                                                                                                                ROBERT S. BRIGHT,
                                                                                                        Founder and President, Talson Solutions, LLC.
                                                                  cc: Ms. Nicole Christus, American Public Transportation Association

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                                                                  Letter of September 8, 2020, from Lorenzo Thompson, Principal, Thompson
                                                                        Civil, LLC, Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                             SEPTEMBER 8, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chair,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                     resentatives, Washington, DC.
                                                                  Re: Request from the Committee on Transportation and Infrastructure on the Dis-
                                                                       advantaged Business Enterprise (DBE) Program
                                                                     DEAR MR. DEFAZIO,
                                                                     I am Lorenzo Thompson and Principal of Thompson Civil, LLC. The only way for
                                                                  my firm to enjoy the work we perform is to be a part of a program that provides
                                                                  project participation from diverse firms. We are located in St. Louis, Missouri, and
                                                                  Illinois. We have only been in the program for 3 years and it has highly contributed
                                                                  to our success.
                                                                     The construction industry is built on managing risk and trusting that others will
                                                                  be able to do their job well and contribute to a project’s profitability. For an agency
                                                                  or a prime contractor to take a chance on an unknown firm there needs to be an
                                                                  incentive. Women-owned and Minority-owned firms are ‘‘unknowns’’ because women
                                                                  and many minorities are seen as strangers to this industry—still after over 30 years
                                                                  of DBE–MBE–WBE programs—because we do not fit the typical image of the con-
                                                                  struction workers and project managers. The DBE program provides incentive and
                                                                  has been very successful in the state Department of Transportation (DOT) markets.
                                                                     The Federal Highway Administration (FHWA) and state DOT commitment to the
                                                                  DBE program sets the tone for the industry to value the program and to strive to
                                                                  build up the industry’s woman-owned and minority-owned firms to match/represent
                                                                  the communities where the tax dollars are spent. The state DOT success in sup-
                                                                  porting capable DBE firms creates a pool of women-owned and minority-owned
                                                                  firms who are available to do work in their region on projects outside the program
                                                                  also.
                                                                     The culture created by the DBE program is valuable to our industry and supports
                                                                  a healthy inclusive environment for diverse firms and for diverse individuals who
                                                                  are under-represented in our industry. Engineers’ and surveyors’ potential is not
                                                                  based on their skin tone, ethnicity, culture, or gender—success in technical fields
                                                                  is based on a love of problem solving. Encouraging diversity in our industry pushes
                                                                  that reality forward and teaches us not to judge a person’s capabilities based on the
                                                                  appearance of capable engineers we have worked with in the past. As in any proc-
                                                                  ess, it is ‘‘easier’’ to continue the status quo, to continue doing business with the
                                                                  same type of people you have always worked with. But the reward for the commu-
                                                                  nity comes when we try a little harder and reach out with opportunities for every-
                                                                  one.
                                                                     Thank you for accepting this letter of support for the DBE program. It has been
                                                                  very valuable to my company, to the engineering/construction industry and to our
                                                                  community.




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                                                                        With warm regards,
                                                                                                                                     LORENZO THOMPSON,
                                                                                                                              Principal, Thompson Civil, LLC.

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                                                                         Letter of July 1, 2020, from Katey Doman, President, TyE Bar LLC,
                                                                                 Submitted for the Record by Hon. Peter A. DeFazio
                                                                                                                                         JULY 1, 2020.
                                                                  Mr. PETER DEFAZIO,
                                                                  Chairman,
                                                                  House Committee on Transportation and Infrastructure, United States House of Rep-
                                                                       resentatives, Washington, DC.
                                                                  RE: Disadvantaged Business Enterprise Program
                                                                     DEAR CHAIRMAN DEFAZIO:
                                                                     With the upcoming 2020 Highway Transportation Bill being discussed, I felt com-
                                                                  pelled to reach out to you for your support of the DBE Program to be included in
                                                                  the proposed bill. As owner of TyE Bar LLC, a DBE reinforcement steel and con-
                                                                  crete paving hardware manufacturer, I still consider myself a start-up company
                                                                  since we have only been in existence for just 5 years. Without having my DBE Cer-
                                                                  tification, I firmly believe my company wouldn’t have made it this far when com-
                                                                  peting against the conglomerate steel manufacturing companies across our nation’s
                                                                  landscape.
                                                                     In 2015 I felt compelled to start a manufacturing business in the heart of Pitts-
                                                                  burgh, to bring manufacturing jobs back to an area that has been left abandoned
                                                                  over the last few decades. I knew that it wouldn’t be possible to compete in the mar-
                                                                  ket unless I was able to receive my DBE certification. Prior to receiving my certifi-
                                                                  cation, I had only been awarded contracts that totalled $800,000, once my certifi-
                                                                  cation had been granted, I picked up an additional $1,800,000 of revenue in just 3
                                                                  months—my revenue had more than doubled.
                                                                     Being a start-up company with over a million dollars in loans, it is inevitable that
                                                                  I am not the low price to the DOT Contracting Communities. With no ties to steel
                                                                  mills I am receiving raw material from my very own competitors—I can never be
                                                                  low for that reason alone. Without DOT Agency’s having DBE Programs in place
                                                                  there wouldn’t be an arena that I could possibly compete in due to the disadvan-
                                                                  tages I face as a woman-owned, independent, start-up manufacturer.
                                                                     What does the DBE Program do for the American People?
                                                                     In 2015 I had employed 4 blue-collared employees and five years later I am proud
                                                                  to have 34 employees helping manufacture products that go into the roads and
                                                                  bridges that our American people travel every day. Last year our revenue has grown
                                                                  to $11,000,000 and if the DBE program remains in effect for the 2020 Transpor-
                                                                  tation Bill I anticipate with my past growth rate that by 2022 we will employ more
                                                                  than 70 people and manufacture over $23 million dollars in heavy highway prod-
                                                                  ucts.
                                                                     The inclusion of the DBE Program is vital to helping small businesses such as
                                                                  TyE Bar. Without the DBE Program I would lose more than three quarters of my
                                                                  business, most likely TyE Bar would cease to exist. The DBE Program allows for
                                                                  us to participate, doesn’t guarantee us work, but gives us the opportunity to be con-
                                                                  sidered.
                                                                     Mr. Chairman, I ask that you consider what the DBE Program brings to small
                                                                  businesses and the American People. If there is any additional information that you
                                                                  would find helpful, please don’t hesitate to reach out to me.
                                                                       Thank you kindly for your consideration,
                                                                                                                                   KATEY DOMAN,
                                                                                                                             President, TyE Bar LLC.

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                                                                       Statement of Joann Payne, President, Women First National Legislative
                                                                           Committee, Submitted for the Record by Hon. Peter A. DeFazio
                                                                    Chairman Peter DeFazio, Congressman Sam Graves and Chairwoman Eleanor
                                                                  Holmes Norton——
                                                                    Thank you for the opportunity to submit a statement for the Congressional Record
                                                                  on behalf of Women First National Legislative Committee (Women First). Women
                                                                  First is a nonpartisan, national grassroots advocacy group that promotes and pro-




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                                                                  tects the interests of women owned businesses certified in the United States Depart-
                                                                  ment of Transportation Disadvantaged Business Enterprise (DBE) Program. Found-
                                                                  ed in 1985, Women First has been advocating for small women owned businesses
                                                                  in the highway construction industry for the past 35 years.

                                                                                                             INTRODUCTION
                                                                    In 2001, Women First submitted an Amicus Brief to the Supreme Court in
                                                                  Adarand Construction v. Mineta. In the brief, it said, ‘‘they have experienced first-
                                                                  hand the detrimental effects of the discriminatory practices, which, to this day, con-
                                                                  tinue to plague the construction industry. As a result of this discrimination, the
                                                                  ability of women owned businesses to compete for government contracts in the
                                                                  transportation related area has been severely hampered.’’ 1
                                                                    And in 2020 those words are still true today.
                                                                    From the day Eve took a bite out of the apple in the Garden of Eden, women have
                                                                  been submitted to systemic sex discrimination in every aspect of their social, eco-
                                                                  nomic, and political lives. They have been undervalued and remain underrep-
                                                                  resented in position of power.
                                                                    A study conducted by the Pew Research Center found that two-thirds of women
                                                                  in the United States believe we still have a way to go to achieving equality. Women
                                                                  executives, doctors, lawyers, and professional athletes earn less money than men.
                                                                  According to a 2019 study done by McKinsey & Company women earn more bach-
                                                                  elor’s degrees then men, but men obtain more entry-level positions in corporate
                                                                  America. The study also found that men outnumber women in management-level
                                                                  positions 62% to 38%. There are only 7% of Fortune 500 CEOs that are women.
                                                                  Congress in 2020 is 75% men.
                                                                    When I testified in 1986 to the Senate Environment and Public Works Committee
                                                                  supporting the inclusion of women in the DBE program, I testified that women
                                                                  made 70 cents to a man’s dollar. Today, a woman makes 79 cents to a man’s dollar.
                                                                  The US Women’s Soccer Team has won four World Cups, four Olympic gold medals,
                                                                  and eight Gold Cups, yet they are grossly underpaid, lack the necessary training
                                                                  facilities and poor travel conditions that are not equal to the US Men’s Soccer Team,
                                                                  who has not been as successful as the women’s team.
                                                                    Like the men’s soccer team, the women’s soccer team is governed under the US
                                                                  Soccer Federation (USSF) with the same rules, regulations and international com-
                                                                  petition agenda. The US Women’s Soccer Team filed a gender discrimination lawsuit
                                                                  against the USSF. USSF response to the lawsuit was Men were superior to women
                                                                  because they have greater physical strength and skills . . . need I say more?

                                                                                                           PROGRAM OVERVIEW
                                                                     The DBE Program is a competitive small business program that has an innovative
                                                                  goal setting economic development program that produces results year after year.
                                                                     The program:
                                                                     • Creates jobs—approximately 125,000 jobs are created by DBE companies annu-
                                                                       ally
                                                                     • Serves as an engine of growth for our nation’s economy even in with the Pan-
                                                                       demic
                                                                     • Establishes a tax base from women and minority owned businesses;
                                                                     • Promotes competition in an industry where there was very little for years;
                                                                     • Levels the playing field by opening access
                                                                     • Promotes diversity
                                                                     The DBE Program has proven to be an equal opportunity program, which benefits
                                                                  all Americans by promoting the development and competitiveness of America’s small
                                                                  businesses. In fact, the DBE Program is the most successful small business con-
                                                                  tracting program for women. For example, the DBE Program has significantly in-
                                                                  creased the percentage of women owned construction firms. Women DBE participa-
                                                                  tion has increased from 1.6% in 1986 to over 7% in 2018.

                                                                                                      RESPONSES FROM DBES
                                                                    Women First collected about 40 letters from DBEs across the country asking them
                                                                  to submit to the Committee on Transportation & Infrastructure their stories and
                                                                  why the DBE program should continue.

                                                                     1 Brief of Women First National Legislative Committee, et al., Amici Curiae in Support of Af-
                                                                  firmance of the Tenth Circuit Court of Appeals.




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                                                                     Wisconsin: ‘‘I am writing to emphasize the importance of the reauthorization of
                                                                  the Federal DBE Program in the Highway Transportation Bill. We are a minority-
                                                                  owned business of color and we have been shut out of many opportunities to partici-
                                                                  pate on projects. I would like to see more opportunity for disadvantaged business
                                                                  enterprises of Hispanic Americans’’.
                                                                     Washington State: ‘‘Against many challenges, both from individuals and firms
                                                                  within the male-dominated construction industry, labor unions, lack of capital and
                                                                  bonding, my firm rose to become the only female-owned, union electrical contractor
                                                                  specializing in highway electrical work in the State of Washington. From 2010–2017
                                                                  my firm successfully completed 122 projects valued at nearly $ 80 million. That is,
                                                                  until the agency that was supposed to support women and minority owned busi-
                                                                  nesses, WSDOT Office of Equal Opportunity, removed white women from the federal
                                                                  DBE program in June of 2017. My firm went from doing nearly $ 9 million a year,
                                                                  preparing to graduate from the program, to being out of business in only 18
                                                                  months’’.
                                                                     Missouri: ‘‘The construction industry is built on managing risk and trusting that
                                                                  others will be able to do their job well and contribute to a project’s profitability. For
                                                                  an agency or a prime contractor to take a chance on a new/unknown/small firm
                                                                  there needs to be an incentive. Women-owned and Minority-owned firms are ‘‘un-
                                                                  knowns’’ because we are seen as strangers to this industry—still after over 30 years
                                                                  of DBE–MBE–WBE programs because we do not fit the typical image of construc-
                                                                  tion workers and project managers. The DBE program provides incentive and has
                                                                  been very successful in the markets I work in. The program gives me enough value-
                                                                  potential to have the initial discussions with a potential client—whether that is an
                                                                  agency or prime contractor/consultant. Then my company can prove that we are ca-
                                                                  pable and have value on our own, beyond the DBE incentive’’.
                                                                     Illinois: ‘‘More importantly, we are forced to wait sometimes months after the gen-
                                                                  eral contractor is paid before we receive payment. More times than not, we are
                                                                  forced to call the general contractor numerous times requesting we be paid and this
                                                                  is after confirming they have been paid by the owner. It is extremely frustrating
                                                                  to complete a job on or ahead of schedule, with complete satisfaction of the general
                                                                  contractor only to be sent a perceived message of, ‘You’ll get paid when I feel like
                                                                  paying you and not a day before!’ It is extremely disheartening. The DBE Program
                                                                  has enhanced our opportunities in the highway, transit, and airport construction in-
                                                                  dustries simply by existing. The consequences of not having the program would be
                                                                  our business would not exist. But for the Disadvantage Business Enterprise and the
                                                                  requirements to use minority owned businesses, we would not in reality because
                                                                  general contractors would self-perform. Securing working capital is extremely dif-
                                                                  ficult for minority owned businesses. Personally, I am repeatedly forced to secure
                                                                  loans with interest rates that mirror loans from merchant cash advances. While the
                                                                  interest rates are uncomfortably high, the loans are necessary to make payroll and
                                                                  purchase the equipment and materials needed to perform the job in the absence of
                                                                  mobilization.’’
                                                                     Massachusetts: ‘‘Small businesses, especially women-owned firms, need to be
                                                                  given a chance to prove themselves. The DBE program does just that by high-
                                                                  lighting firms that may otherwise have doors permanently closed. I have experi-
                                                                  enced discrimination in the construction industry through the years, and, have been
                                                                  pushed off projects that I was equally qualified to do. I am thankful for the DBE
                                                                  program. It serves a vital role by providing checks and balances to assure that all
                                                                  companies, large, small, women, and minorities are allowed the equal opportunity
                                                                  to participate.’’

                                                                                                 CHANGES TO THE DBE PROGRAM
                                                                    The DBE program only applies to highway, transit, and airport construction and
                                                                  related industries. One purpose of the DBE program is to develop minority and
                                                                  women construction businesses so they can gain experience and expertise to com-
                                                                  pete for federal, local, and state contracts.
                                                                    The perceived outcome is DBEs would achieve three consecutive years of gross re-
                                                                  ceipts of $23.980 million and graduate out of the program and successfully compete
                                                                  equally with majority male firms for federal, state, and local contracts. Unfortu-
                                                                  nately, the beneficiaries of the statutory size cap of 23.980 million applies only to
                                                                  a small percentage of DBEs.
                                                                    In reality, the DBE program is a subcontracting program where ninety-nine per-
                                                                  cent of DBEs are limited to the Small Business Size Standard and the cap governed
                                                                  by the North American Industry Classification System (NAICS) Code. Depending on
                                                                  the code classification, highway, transit, and airport construction, specialty trade
                                                                  sub contractors may have a cap that is between $3 million to $17 million. By con-




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                                                                  necting the subcontractors to the size standard in the NAICS Codes, it prohibits
                                                                  DBEs from developing into prime/ general contractors and puts them at a disadvan-
                                                                  tage with non-DBE companies.
                                                                    Additionally, it creates an endless cycle of DBEs graduating out of the program
                                                                  to finding their company has lost fifty percent or more of its business and a need
                                                                  to reapply back into the program after one year. One of the main reasons this cycle
                                                                  continues to escalate is the rise in material cost in the construction industry espe-
                                                                  cially in the last three years.

                                                                                                           RECOMMENDATIONS:
                                                                  1. Gross Receipts
                                                                    There should be two statutory gross receipts levels. One for DBE companies that
                                                                  compete as prime contractors and one for the Specialty and sub-contractors. Once
                                                                  the DBE graduates out of the Small Business levels, Congress should create a new
                                                                  medium-size business program that would include all medium size companies (ma-
                                                                  jority males included) with goals, certification, limited personal worth and gross re-
                                                                  ceipts.
                                                                  2. DBE Procurement Disagreements with Prime Contractors and Recipients
                                                                    The Secretary should take additional steps and procedures to ensure that recipi-
                                                                  ents report immediately to the Federal Administrator any procurement disputes
                                                                  that may develop between DBEs, general contractors and or recipients. There has
                                                                  been an increase in procurement disputes between DBEs general contractors and
                                                                  state DOTs. DBEs have contract agreements with general contractors. The states
                                                                  try to stay out of the mix but are asked to notify FHWA if conflict arises, however,
                                                                  they have been slow to report problems. This has resulted in millions of dollars lost
                                                                  by DBE firms. Let us not forget that firms that are certified in the program are
                                                                  there because they are at a disadvantaged over non-minority firms.
                                                                  3. Disparity Studies
                                                                     The Secretary should create a Disparity Study Committee to develop guidelines
                                                                  for firms and recipients conducting Disparity Studies. The Committee should in-
                                                                  clude, but not limited to representatives from disparity study firms, DBEs, DBE ad-
                                                                  vocates, Federal Highway’s Office of Civil Rights, department lawyers, and state de-
                                                                  partment of transportation. Presently, there are no guidelines in place for firms who
                                                                  conduct disparity studies or recipients who want the studies conducted. This situa-
                                                                  tion has resulted in an unresolved issue in Washington State that has left one of
                                                                  the protected groups out of the ‘‘goal-counting’’ on federal projects.
                                                                  4. Unbundling
                                                                    Require the Secretary to create an incentive program for state department of
                                                                  transportation and other recipients to unbundle mega-contracts and create contracts
                                                                  that are $2 million dollars or less for DBEs to compete for as primes.

                                                                                               IF THE PROGRAM DOES NOT CONTINUE
                                                                    In representing women-owned DBEs for thirty-five years, I have heard women
                                                                  discuss the problems they face in the construction industry with Members of Con-
                                                                  gress and the Administration. These women, everyday, have to face the assumption
                                                                  by others that they can not do the work and run their businesses. Women owned
                                                                  businesses still have problems obtaining loans and bonding and after years in busi-
                                                                  ness they still have to explain that they are the boss to men on the jobs who refuse
                                                                  to believe that a woman can be the boss.
                                                                    If the DBE Program were not to continue, I believe not just women and minority
                                                                  owned companies will be severely affected, but small majority owned sub-con-
                                                                  tracting businesses will be affected as well. The only small business program in the
                                                                  highway, airport and transit industries will disappear. There would be no reason
                                                                  for sub-contract work even to majority firms thus competition would be eliminated
                                                                  and prices will climb.
                                                                    The trend of the industry the last several years has been the prime contractors
                                                                  are doing more of the work in-house. A great example is what happen in Wash-
                                                                  ington State when women were removed from the goal setting program. The group
                                                                  that benefited the most and increase in percentage was the large majority firms.




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                                                                                                              CONCLUSION
                                                                     I had a member of the Women First Board of Trustees tell me when asked why
                                                                  she still felt the burn of discrimination after years in business. She said to me that
                                                                  when she attends meetings there are very few women, if any, around the table.
                                                                     She thinks, ‘‘Well it will be ok because I am at the table, I know these people,
                                                                  I’ve worked with them and I make a pretty good living—so why do I still feel the
                                                                  subtle discrimination—and then I realized why.’’ She continued, ‘‘It’s because I am
                                                                  not like them, I will never be like them, I am different and they don’t understand
                                                                  the importance of that.’’
                                                                     I have thought about her statement a lot and I believe this awareness should em-
                                                                  power her and other women owned businesses, because they contribute and make
                                                                  better an industry that is vital to our country’s daily life. And it also why diversity
                                                                  is so important in the highway industry and in our nation. Our diversity is what
                                                                  strengthens and binds us together. We are a government for all the people and all
                                                                  of our people deserve a chance to compete and to contribute.
                                                                                                             f
                                                                       Statement of the American Road & Transportation Builders Association,
                                                                             Submitted for the Record by Hon. Sam Graves of Missouri
                                                                     Chair DeFazio and Ranking Member Graves, thank you for allowing the American
                                                                  Road & Transportation Builders Association (ARTBA) to offer our views as part of
                                                                  today’s hearing on the Disadvantaged Business Enterprise (DBE) Program.
                                                                     Established in 1902, ARTBA is the oldest national transportation construction-re-
                                                                  lated association. ARTBA’s more than 8,000 members include public agencies and
                                                                  private firms and organizations that own, plan, design, supply and construct trans-
                                                                  portation projects throughout the country and world. The industry we represent
                                                                  generates more than $500 billion annually in U.S. economic activity and sustains
                                                                  more than 4 million American jobs.
                                                                     In the midst of the current pandemic, ARTBA remains a steadfast advocate for
                                                                  increased federal transportation investment. Given additional resources, the trans-
                                                                  portation construction industry can help lead the nation’s economic recovery. It is
                                                                  important to view the DBE program—and its potential opportunities—in this con-
                                                                  text.
                                                                     Compliance with the DBE program, which has been in place for nearly 40 years,
                                                                  is a key task for transportation agencies and contractors on federal-aid transpor-
                                                                  tation projects. The program’s purposes include developing DBE firms and ensuring
                                                                  a level playing field in contracting for federal-aid projects. As with other regulatory
                                                                  requirements, the transportation construction industry seeks to comply with the
                                                                  DBE program rule while carrying out its core objective of delivering projects in an
                                                                  efficient, timely and safe manner. Moreover, the integrity of the DBE program is
                                                                  critical.
                                                                     While Congress authorizes and establishes parameters for the DBE program, the
                                                                  U.S. Department of Transportation (USDOT), its modal administrations, and state
                                                                  and local transportation agencies are responsible for the program’s implementation.
                                                                  This includes USDOT rulemaking and issuance of guidance, in which the industry
                                                                  always maintains great interest. Our submission today references a number of these
                                                                  administrative actions and policies. While we know the committee wants to stay
                                                                  abreast of these activities because of its oversight responsibilities, we also hope you
                                                                  consider our proposed improvements as potential future legislative provisions, such
                                                                  as in the next surface transportation reauthorization bill.
                                                                     We seek to highlight ways in which the DBE program can be run more efficiently
                                                                  and effectively, including for the benefit of those emerging businesses for which the
                                                                  program was developed. Similarly, we point out specific aspects of the current DBE
                                                                  rule and guidance where the opposite often results. We are informed in our com-
                                                                  ments by examples of collaborative efforts to structure and implement state-level
                                                                  DBE programs around the country, in which various ARTBA members and affiliated
                                                                  chapters have participated.
                                                                     In describing our proposed improvements, we cite (with page numbers) USDOT’s
                                                                  DBE guidance entitled ‘‘Official Questions and Answers (Q&A’s) Disadvantaged
                                                                  Business Enterprise Program Regulation (49 CFR 26),’’ dated April 25, 2018 (and
                                                                  referred to as the ‘‘guidance’’ or ‘‘Q&A’’); and one of its addenda, the single-page
                                                                  ‘‘Procedures for Submitting Good Faith Efforts Information on Design-Bid-Build
                                                                  Contracts,’’ dated June 20, 2018.
                                                                     Our four primary themes are the following: 1.) identification of policies that di-
                                                                  verge markedly from customary and efficient industry practices, which can add
                                                                  project costs and sometimes work to the detriment of DBE firms themselves, 2.) in-




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                                                                  consistencies in USDOT’s adherence to its own DBE guidance document, which ex-
                                                                  plicitly advises recipient-agencies to craft aspects of their DBE programs using ‘‘in-
                                                                  formation about the real world of contracting in the recipient’s contracting area,’’
                                                                  because ‘‘[r]ecipients know their own markets’’ [p. 61]; 3.) lack of meaningful con-
                                                                  sultation with the industry and other legitimate stakeholders about important policy
                                                                  changes; and 4.) failure to modernize the DBE guidance to reflect evolving business
                                                                  practices in the industry (especially those involving emerging technologies), with nu-
                                                                  merous Q&A sections dating back to the previous century. ARTBA hopes to see a
                                                                  collaborative effort to improve DBE program implementation in these respects.
                                                                                GOOD FAITH EFFORT AND SUBMISSION OF DBE COMMITMENTS
                                                                     USDOT conducted a significant DBE rulemaking in 2012–14, issuing its final rule
                                                                  on October 2, 2014 (79 CFR 59565). A key and contentious issue was the depart-
                                                                  ment’s initial proposal to abolish the longstanding ‘‘responsibility’’ option, through
                                                                  which recipient-agencies had the option of accepting DBE utilization plans from bid-
                                                                  ders (or sometimes just the apparent low bidder) within a reasonable number of
                                                                  days after the bid on design-bid-build projects. Had the department stayed with its
                                                                  original position, as ARTBA and numerous other commenters noted, prime contrac-
                                                                  tors and DBE subcontractors, among others, would have been overwhelmed with the
                                                                  mandate to gather or submit quotes for numerous projects at the same time, many/
                                                                  most/all of which would be for projects in which they would not eventually partici-
                                                                  pate, which is the nature of the letting process. The potential for added administra-
                                                                  tive costs was obvious. For example, at the time of the rulemaking, Illinois had a
                                                                  state ‘‘no cure’’ law similar to USDOT’s proposed provision. While Illinois’ law was
                                                                  in effect, fewer projects met the DBE goal. Worse yet, some DBE subcontractors
                                                                  overcommitted themselves during the bidding process, leading to their demise.
                                                                     Ultimately, to the great relief of industry and many recipients, the department
                                                                  settled on a maximum seven-day window (later to be shortened to five days) for the
                                                                  submission of DBE commitments under the responsibility option. To the best of our
                                                                  knowledge, in a series of written, audio and video communications rolling out the
                                                                  DBE rule changes in late 2014 and early 2015, no one from USDOT averred recipi-
                                                                  ents would now need to require all bidders to submit their DBE commitments in
                                                                  all circumstances. The practice among the states would continue to vary permis-
                                                                  sibly, in that some states only required this information from the lowest apparent
                                                                  bidder, others the lowest two bidders, and so forth.
                                                                     In fact, in the publication of its final rule in 2014, USDOT described the responsi-
                                                                  bility option as follows: ‘‘We think it reasonable ultimately to limit the time to a
                                                                  maximum of 5 calendar days to protect program beneficiaries and overall program
                                                                  integrity.’’ In a related footnote, ‘‘Due to the definition of ‘days’ adopted in this final
                                                                  rule, bidders or offerors will have 5 calendar days (i.e., not business days) to submit
                                                                  the necessary information. Thus, if a bid is submitted on Thursday, the apparent
                                                                  low bidder would have until Tuesday to submit the information’’ [emphasis added].
                                                                     It was therefore shocking and disappointing when the department issued a one-
                                                                  page guidance on June 20, 2018, ordering that on design-bid-build contracts, ‘‘all
                                                                  bidders . . . submit credible documentation of DBE commitments and/or good faith
                                                                  efforts either with their sealed bid, as a matter of responsiveness; or no later than
                                                                  five days after bid opening, as a matter of responsibility’’ [emphasis in original]. De-
                                                                  partment officials have since contended this revised guidance was not a change in
                                                                  policy, but a restated means of reviewing the performance of all bidders and their
                                                                  respective good faith efforts. Under that reasoning, the pronouncements made upon
                                                                  publication of the final rule were misleading and/or opaque—whether intentional or
                                                                  not. (On at least two occasions, a department official publicly stated or implied re-
                                                                  cipients could maintain current options for implementing the responsibility ap-
                                                                  proach, if they abided by the newly-prescribed time limit.)
                                                                     It is puzzling the department would let 1,357 days (or three years, eight months
                                                                  and 18 days) elapse between publication of its final rule and this supposed clarifica-
                                                                  tion of related, existing policy. (If it was part of longstanding policy, why not make
                                                                  that clear while rolling out the rule changes?) Had ARTBA and other stakeholders
                                                                  been given the opportunity to submit public comments, we would have made a com-
                                                                  pelling argument this change in policy will add costs to many projects, in direct con-
                                                                  travention of the administration’s regulatory reform principles.
                                                                     To be certain, implementation of this good faith effort guidance provision will in-
                                                                  crease project costs in a number of states. In the past, we have seen this draconian
                                                                  approach result in fewer bidders among prime contractors, DBE contractors’ quoting
                                                                  too few projects (for fear of overcommitment) or too many (sometimes leading to
                                                                  their dissolution) and decreased achievement of DBE project goals. In 2013, ARTBA
                                                                  facilitated a survey of nearly 300 transportation construction contractors, who over-




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                                                                  whelmingly anticipated the proposed new DBE regulations (such as one similar to
                                                                  the 2018 guidance) would increase the cost of projects because of added compliance
                                                                  burdens.
                                                                    Moreover, proponents of the ‘‘all bidders’’ approach ignore—and have no coherent
                                                                  response for—the fact that most DBE firms (which are small businesses, and often
                                                                  start-ups) do not have the capacity to provide quotes for a large number of projects
                                                                  at the same time, as part of the same letting, especially given the likelihood they
                                                                  will participate in just a few of them, at best.
                                                                    It is also troubling that USDOT has forced this ‘‘misguidance’’ provision on recipi-
                                                                  ent-agencies and contracting communities in states with DBE programs considered
                                                                  successful and effective by all parties.
                                                                    USDOT should reverse this back-door rulemaking and work with all parties—in-
                                                                  cluding DBE and non-DBE contractors—to address any concerns that led to its
                                                                  adoption in the first place. That is far preferable to the department’s issuing man-
                                                                  dates in conflict with its own rules.
                                                                                                 GOOD FAITH EFFORT PARAMETERS
                                                                    After nearly four decades, the DBE rule and guidance still do not provide objective
                                                                  descriptions of good faith efforts to be undertaken by prime contractors. USDOT
                                                                  should compile examples of successful good faith effort practices nationwide, which
                                                                  would function similarly to case law in the legal realm. At the same time, while the
                                                                  department advises that prime contractors need not accept DBE subcontractors’
                                                                  prices which are ‘‘excessive or unreasonable,’’ the guidance has never provided in-
                                                                  sight as to how to define those terms.
                                                                    ARTBA members have noted examples of recipient-agencies in their respective
                                                                  markets that do not maintain current or accurate databases or lists of DBE firms
                                                                  actually ready, willing and able (as the rule states) to participate in a transportation
                                                                  project. These lists—if they exist at all—commonly include firms in disciplines unre-
                                                                  lated to transportation or construction, not qualified or certified to work on a project
                                                                  for that agency, or out of business or unreachable. The related concept of ‘‘potential
                                                                  DBEs,’’ as used in assessing good faith effort or setting overall DBE goals in a juris-
                                                                  diction, strains the limits of credulity.
                                                                    For all these reasons, USDOT should direct recipients to compile and maintain
                                                                  information for legitimate and relevant DBE firms. The current rule also suggests
                                                                  a prime contractor use the services of community organizations and business assist-
                                                                  ance offices as part of its good faith effort. That role is more properly assigned to
                                                                  the recipient, for the benefit of all prime contractors and DBE firms.

                                                                                                 PROMPT PAYMENT AND RETAINAGE
                                                                    There have been ongoing concerns that the USDOT guidance on prompt payment
                                                                  and retainage (pp. 4–9) does not reflect the ‘‘real world of contracting.’’ In the recent
                                                                  past, ARTBA members reported a development at the state level, in which prime
                                                                  contractors were prohibited from withholding funds for a DBE subcontractor’s pro-
                                                                  rated bond, as well as their state/local association dues. This prevents a common
                                                                  industry practice and puts affected DBE subcontractors at a disadvantage, in that
                                                                  their non-DBE counterparts are able to address surety protection and association
                                                                  membership as part of the contractual relationship with their prime contractor. To
                                                                  address this and related prompt payment issues, we suggest a collaborative effort
                                                                  with recipients and industry to better understand everyone’s respective views of the
                                                                  payment process.

                                                                                    PRIME CONTRACTOR/DBE SUBCONTRACTOR RELATIONSHIP
                                                                    In some notable cases, the department’s Q&A prohibits DBE credit for that firm’s
                                                                  carrying out customary and efficient industry practices. Generally, the cost of equip-
                                                                  ment purchased or leased by a DBE subcontractor from a prime contractor does not
                                                                  count for DBE credit (p. 12). (Similarly, materials purchased from a prime con-
                                                                  tractor do not count either.) Given that it is common for ‘‘primes and subs’’ to under-
                                                                  take these types of transactions, the rule and guidance actually put DBE firms at
                                                                  a disadvantage in this regard. Industry has long made the point that materials sup-
                                                                  pliers may be limited in a given geographic area, and as a result it may be nec-
                                                                  essary for a prime contractor, who is also the sole/dominant supplier there, to sell
                                                                  material to the DBE subcontractor. The DBE rule should stop ignoring the realities
                                                                  of that circumstance, and instead allow counting of the material for DBE credit
                                                                  when appropriate.
                                                                    USDOT’s Q&A also directs prime contractors to consult with their recipient-agen-
                                                                  cy about the appropriateness of their relationship with a DBE subcontractor. Unfor-




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                                                                  tunately, the recipient’s assessment can count for little or nothing should law en-
                                                                  forcement question the relationship at a future time. A future legislative revision
                                                                  to the DBE program should designate these agency assessments as a safe harbor
                                                                  for the contracting parties should they follow the agency’s parameters.
                                                                                                           REGULAR DEALERS
                                                                     In another issue addressed in the 2012–14 rulemaking, the department initially
                                                                  explored abolishing the regular dealer designation for DBE firms. The final rule
                                                                  mandated those firms’ status would be determined on a project-by-project basis.
                                                                     The Q&A betrays a strong presumption that drop shipment of supplies or mate-
                                                                  rials to a project site downgrades a DBE supplier’s status from regular dealer to
                                                                  that of expediter or broker. In that case, the prime contractor may not count any
                                                                  of the materials cost (other than the DBE firm’s commission) for DBE credit, and
                                                                  the practice also calls into question the subcontractor’s commercially useful function.
                                                                     This viewpoint is outdated and shows unawareness of current business practices
                                                                  in the industry, in which emerging technologies and efficiencies continue to develop.
                                                                  The ‘‘case-by-case’’ approach is also excessively subjective and puts this determina-
                                                                  tion in the hands of perhaps one agency official.
                                                                     In recent years, USDOT has conducted at least one ‘‘listening session’’ on the reg-
                                                                  ular dealer issue, but limited the number of participants and did not include a rep-
                                                                  resentative cross-section of the industry. The department should commit to improv-
                                                                  ing this 2014 provision to reflect the decade (and century) we are in, while collabo-
                                                                  rating with all interested stakeholders in doing so.
                                                                                                COMMERCIALLY USEFUL FUNCTION
                                                                     This section of the USDOT Q&A (pp. 40–42) addresses the requirement for DBE
                                                                  firms to meaningfully participate in a project, rather than assuming a role contrived
                                                                  so DBE goals can be achieved. Again, however, the guidance does not capture cur-
                                                                  rent industry practices and potential roles on a transportation improvement project.
                                                                  The material in this section dates back to 1999 and 2012. Technology and other de-
                                                                  velopments have created new opportunities and potential responsibilities for sub-
                                                                  contractors, DBE and otherwise. (One example of many is a social media coordinator
                                                                  for a major project, where public communications are vital.) The department should
                                                                  initiate a dialogue with industry to bring this section up to date.
                                                                                                            JOINT CHECKS
                                                                     It is common industry practice for a prime contractor to issue a check jointly to
                                                                  its first-tier subcontractor and that subcontractor’s material supplier. Joint checks
                                                                  are used regardless of a subcontractor or supplier’s status as a DBE. Many such
                                                                  firms prefer this method of payment. Yet USDOT’s DBE Q&A deems the use of joint
                                                                  checks as a ‘‘ ‘red flag’ calling for further scrutiny.’’ Again, the department should
                                                                  make an effort to better understand typical industry transactions and not approach
                                                                  this practice with a presumption of guilt.
                                                                                                   MENTOR-PROTÉGÉ PROGRAMS
                                                                    More than 20 years ago, the department’s Q&A recognized the use of mentor-
                                                                  protégé programs in DBE development. Many members of the industry—including
                                                                  emerging DBE firms—believe in their value as well. However, USDOT’s guidance
                                                                  provides virtually no direction as to the permissible structure of such a program,
                                                                  instead giving responsibility to the private sector. Prime contractors may have little
                                                                  incentive to participate, especially considering the legal risk they may incur if law
                                                                  enforcement later accuses the parties of an improper relationship that undercuts the
                                                                  DBE firm’s commercially useful function.
                                                                    A better approach would be directing recipients to initiate mentor-protégé pro-
                                                                  grams in consultation with the industry in their market. Again, the department
                                                                  should compile permissible practices for all to see, and stand behind them as a legal
                                                                  safe harbor for program participants.

                                                                                    ALTERNATIVE CONTRACTING & PROCUREMENT METHODS
                                                                    In 2018, the Federal Highway Administration’s Office of Civil Rights published
                                                                  the ‘‘Disadvantaged Business Enterprise Program Administration and Oversight on
                                                                  Projects with Alternative Contracting & Procurement Methods Handbook.’’ A major
                                                                  premise of the document is that planning and implementing DBE compliance on de-
                                                                  sign-build and similar projects, where the scope and specifics of subcontracting op-
                                                                  portunities evolve over its life, require a more collaborative and flexible approach




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                                                                  than for ‘‘design-bid-build’’ projects. However, ARTBA believes some of the same
                                                                  methods outlined in the handbook would also be appropriate for use in many such
                                                                  ‘‘traditional’’ projects. We hope to explore wider use of these innovations with the
                                                                  agency when possible.

                                                                                      GOVERNMENT ACCOUNTABILITY OFFICE (GAO) STUDY
                                                                     ARTBA, various members of this committee, and others involved in today’s hear-
                                                                  ing have pointed out shortcomings of and potential improvements for the DBE pro-
                                                                  gram. This is an opportune time for the Government Accountability Office (GAO)
                                                                  to conduct a study of the DBE program’s first four decades, focused on assessing
                                                                  the program’s fulfillment of its stated purposes and recommendations for program
                                                                  improvements to achieve its desired outcomes. In carrying out the study, the GAO
                                                                  should seek a full range of stakeholder views.
                                                                     ARTBA suggests that this committee include direction for this GAO study in its
                                                                  next draft of surface transportation reauthorization legislation. It will serve as a
                                                                  catalyst for all interested stakeholders—including the U.S. Department of Transpor-
                                                                  tation, state agencies, contractors and the minority- and women-owned business
                                                                  communities—to collaborate on improving the DBE program’s efficiency and effec-
                                                                  tiveness.

                                                                                                             CONCLUSION
                                                                    By exploring and incorporating the improvements described above, the DBE pro-
                                                                  gram can be a more productive component of federal-aid transportation programs
                                                                  that maximize business opportunities and put Americans to work, while operating
                                                                  with efficiency and integrity. We appreciate this committee’s consideration of
                                                                  ARTBA’s views and hope to engage in a continuing dialogue as the surface transpor-
                                                                  tation reauthorization process moves forward.

                                                                                                            f

                                                                  Letter of October 7, 2020, from James V. Christianson, Vice President, Gov-
                                                                   ernment Relations, Associated General Contractors of America, Sub-
                                                                   mitted for the Record by Hon. Sam Graves of Missouri
                                                                                                                               OCTOBER 7, 2020.
                                                                  Hon. PETER DEFAZIO,
                                                                  Chairman,
                                                                  Committee on Transportation, United States House of Representatives, Washington,
                                                                     DC.
                                                                  Hon. SAM GRAVES,
                                                                  Ranking Member,
                                                                  Committee on Transportation, United States House of Representatives, Washington,
                                                                     DC.
                                                                  RE: Hearing entitled, ‘‘Driving Equity: The U.S. Department of Transportation’s
                                                                       Disadvantaged Business Enterprise Program’’
                                                                     DEAR CHAIRMAN DEFAZIO AND RANKING MEMBER GRAVES:
                                                                     On behalf of the Associated General Contractors of America (AGC or Associa-
                                                                  tion)—the leading association in the construction industry representing more than
                                                                  27,000 firms, including America’s leading general contractors and specialty-con-
                                                                  tracting firms—thank you holding the important hearing entitled: ‘‘Driving Equity:
                                                                  The U.S. Department of Transportation’s Disadvantaged Business Enterprise Pro-
                                                                  gram.’’ AGC respectfully puts forward the following comments on fostering diversity
                                                                  and inclusion in the construction industry and recommendations for the U.S. De-
                                                                  partment of Transportation’s (U.S. DOT) Disadvantaged Business Enterprise (DBE)
                                                                  program.

                                                                                                   THE CONSTRUCTION INDUSTRY
                                                                     The construction industry is large, diverse, and fragmented. In 2018, the construc-
                                                                  tion industry had 733,689 firms and 6,814,979 million paid employees. In that same
                                                                  year, ninety-one percent (666,697) of construction firms had fewer than 20 employ-




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                                                                  ees; one percent (8,666) of construction firms had 100 or more employees; the aver-
                                                                  age construction firm had fewer than 9 employees.1
                                                                     As with other industries, construction is not free of discrimination. However, con-
                                                                  struction is an intensely competitive industry and that competition penalizes any
                                                                  company that resorts to discrimination. The unique nature of the construction bid-
                                                                  ding process can also help prevent discrimination from occurring. Most public own-
                                                                  ers are subject to legal requirements for open competitive bidding, which typically
                                                                  include a publicly announced deadline for the submission of sealed bids, the public
                                                                  opening of the bids, and contract award to the lowest responsive and responsible
                                                                  bidder, eliminating the ability for public owners to engage in unlawful discrimina-
                                                                  tion. The resulting pressure on prime contractors makes it necessary to select sub-
                                                                  contractors based on experience, price, and quality.

                                                                                                     DIVERSITY AND INCLUSION
                                                                    Nevertheless, AGC is committed to fostering a business climate that enhances op-
                                                                  portunities for all companies and employees in the construction industry. AGC fully
                                                                  embraces diversity among its employees and within its membership. People of di-
                                                                  verse backgrounds, opinions, perspectives, experiences, and ideas bring creativity
                                                                  and vitality that maximizes member engagement at all levels of the Association.
                                                                  Fostering an environment that is welcoming and inclusive to all individuals is es-
                                                                  sential to achieving the Association’s mission and places members in a position to
                                                                  contribute to the construction industry’s future success. In furtherance of this com-
                                                                  mitment, AGC undertook several efforts over the years, many of which are ongoing.
                                                                  Some of these efforts are described in further detail below.
                                                                    • Established a Diversity and Inclusion Council (Council) within AGC in 2017.
                                                                      The goal of the Council is to foster an environment both in the Association and
                                                                      in the industry that is welcoming and inclusive to all individuals regardless of
                                                                      one’s background, opinions, perspectives, experiences, or ideas. A key strategy
                                                                      of the Council’s is to identify barriers that prevent individuals from underrep-
                                                                      resented groups from pursuing a career in construction and developing re-
                                                                      sources to eliminate those roadblocks.
                                                                    • Authored and released a report, titled ‘‘The Business Case for Diversity & Inclu-
                                                                      sion in the Construction Industry,’’ that outlines six reasons why diversity and
                                                                      inclusion are strategically valuable in generating corporate/industry innovation,
                                                                      increasing profitability, and ensuring a positive and sustaining legacy of
                                                                      progress for a company.
                                                                    • Partnered with AGC of Washington to create an initiative called the Culture
                                                                      of CARE. Launched nationwide in March 2020, the Culture of CARE seeks to
                                                                      advance the construction industry as the industry of choice for diverse and tal-
                                                                      ented workers by building inclusive work environments in construction firms
                                                                      nationwide. The Culture of CARE is built on four principles 2. There are two
                                                                      ways to participate in the Culture of CARE. The first is that a company can
                                                                      commit to a Culture of CARE by signing the company pledge. The second is
                                                                      that an employee can sign an individual pledge. To date, approximately 375
                                                                      companies and 950 individuals took the pledge. Upon taking the pledge, there
                                                                      are resources available to a company such as tools to communicate a company’s
                                                                      pledge, a model human resources policy and best practices, and kits for toolbox
                                                                      talks, with additional resources continuing to be developed.
                                                                    • Created the annual Diversity and Inclusion Excellence Awards in 2018 to honor
                                                                      AGC members that are champions in advancing diversity and fostering a cul-
                                                                      ture of inclusion within their workforce, supply chain, and in the communities
                                                                      they serve. By showcasing and recognizing best practices from companies that
                                                                      are developing and delivering diversity and inclusion initiatives with demon-
                                                                      strable success, award winners have the opportunity to share their track record
                                                                      of achievement and commitment, which will help spur other companies to estab-
                                                                      lish or improve their own initiatives.

                                                                     1 All Sectors: County Business Patterns by Legal Form of Organization and Employment Size
                                                                  Class for U.S., States, and Selected Geographies: 2018. U.S. Census Bureau. https://rb.gy/xtybhe
                                                                  (link shortened). Accessed: October 1, 2020.
                                                                     2 Culture of CARE’s four principles: (1) commit to hire and pay based on skill and experience
                                                                  regardless of age, ethnicity, gender identity, nationality, race, religion, sex, or sexual orientation;
                                                                  (2) attract prospective employees by creating inclusive workplaces that are free from harass-
                                                                  ment, hazing and bullying; (3) retain high-performing employees by identifying and removing
                                                                  barriers to advancement; and (4) empower every employee to promote a culture of diversity and
                                                                  inclusion.




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                                                                                                            DBE PROGRAM
                                                                     The DBE program (or program) plays a pivotal role in fostering diversity and in-
                                                                  clusion in the construction industry by ensuring that certified small businesses
                                                                  owned and controlled by socially and economically disadvantaged individuals can
                                                                  compete for federally funded highway, public transit, and airport projects. The pro-
                                                                  gram was originally established by regulation in 1980. In the years since, Congress
                                                                  included provisions in certain transportation laws that established goals for a cer-
                                                                  tain amount of federal funding to be expended through DBEs.
                                                                     Most recently, Congress continued the goal that not less than 10 percent of cer-
                                                                  tain federal funding, including funding for highways and public transit projects, be
                                                                  expended through DBEs in the Fixing America’s Surface Transportation Act (FAST
                                                                  Act; P.L. 114–94). In addition, the FAST Act authorized up to $10 million of the
                                                                  total amount authorized for the administrative expenses of the Federal Highway
                                                                  Administration each fiscal year to be used for the Disadvantaged Business Enter-
                                                                  prises–Supportive Services (DBE–SS) program. The Federal Aviation Administra-
                                                                  tion Reauthorization Act of 2018 (FAA Reauthorization Act of 2018; P.L. 115–254)
                                                                  continued the goal that at least 10 percent of certain federal funding for airports
                                                                  be expended through DBEs or qualified HUBZone small business. Notably, it also
                                                                  amended the definition of a ‘‘small business concern’’ for the construction industry,
                                                                  tying it to the ‘‘size standard for the North American Industry Classification System
                                                                  Code 237310, as adjusted by the Small Business Administration’’ for the purposes
                                                                  of the DBE program. The DBE program and associated goals are administered by
                                                                  the Departmental Office of Civil Rights, the relevant modal administrations within
                                                                  U.S. DOT, and recipients of certain federal funding.
                                                                                           THE CHALLENGES AND RECOMMENDATIONS:
                                                                     First and foremost, AGC supports the continuation of the DBE program. As with
                                                                  any federal program, there are important improvements to the DBE program that
                                                                  should be made to ensure its continued success. AGC is having ongoing conversa-
                                                                  tions with its members to develop both legislative and regulatory recommendations
                                                                  to help improve the DBE program. In the near-term, AGC respectfully urges the
                                                                  Committee to consider the following recommendations.
                                                                  Definition of a ‘‘Small Business Concern’’
                                                                     Challenge: To meet the definition of a ‘‘small business concern’’ for the purpose
                                                                  of the DBE program for federal highway and public transit funding a company’s av-
                                                                  erage annual gross receipts during the preceding three fiscal years must not exceed
                                                                  $23,980,000, under the FAST Act. The amount is adjusted annually for inflation by
                                                                  the Secretary of Transportation. The amount was previously $22,410,000, adjusted
                                                                  annually for inflation, under the Moving Ahead for Progress in the 21st Century Act
                                                                  (P.L. 112–141). This definition limits the ability of DBEs to grow their companies
                                                                  into sustainable, long-term businesses. Instead, the definition can force DBEs out
                                                                  of the program prematurely or require a DBE to sell off a part of their business.
                                                                  When this occurs, the capacity of certified DBEs in a state dwindles, making it dif-
                                                                  ficult to achieve DBE goals, which undermines the very intent of the DBE program.
                                                                       Recommendation: Congress should amend the definition of a ‘‘small busi-
                                                                       ness concern’’ for the purposes of the DBE program. Specifically, the defini-
                                                                       tion should provide for a significant increase in the annual gross revenue
                                                                       receipts during the preceding three fiscal years. This new amount should
                                                                       continue to be adjusted for inflation. The increase will help ensure that
                                                                       DBEs that exceed the amount are more likely to succeed outside of the
                                                                       DBE program and it will help address capacity issues.
                                                                  Reciprocity of DBE Certifications
                                                                     Challenge: Prior to being eligible to participate in a state’s DBE program, a com-
                                                                  pany must go through a rigorous certification process. The company bears the ‘‘bur-
                                                                  den of demonstrating to you, by a preponderance of evidence, that it meets the re-
                                                                  quirements of this subpart concerning group membership or individual disadvan-
                                                                  tage, business size, ownership, and control’’ (49 CFR 26.61). Federal regulations (49
                                                                  CFR 26 Subparts D and E) set forth the standards and procedures for making a
                                                                  certification decision for an applicant company by a state certification agency.
                                                                     Once a company is certified as a DBE, it remains certified until or unless a state
                                                                  certification agency removes its certification in whole or in part through a separate
                                                                  process outlined in federal regulations. A state certification agency cannot require
                                                                  a certified DBE to reapply for certification or undergo a re-certification process.
                                                                  However, a state certification agency may conduct a certification review of a DBE
                                                                  if appropriate. A certified DBE is required to inform a state certification agency of




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                                                                  any changes to its circumstances (i.e., disadvantaged or economic status) that affect
                                                                  its ability to meet federal requirements or its application and it must provide a state
                                                                  certification agency with a sworn affidavit on an annual basis that affirms that
                                                                  there have not been any changes to the company’s circumstances.
                                                                     While the federal regulations allow for a state certification agency to accept an-
                                                                  other state’s certification of a DBE, there is discretion given to a state certification
                                                                  agency in terms of accepting that certification (49 CFR 26.85) and the process for
                                                                  doing so is also rigorous. The lack of direct reciprocity for states’ DBE certifications
                                                                  artificially limits the ability of DBEs to expand their businesses. In addition, it
                                                                  hinders the ability for a prime contractor to address any capacity constraints in a
                                                                  state that impacts its ability to meet DBE goals.
                                                                        Recommendation: Congress should facilitate increased reciprocity of DBE
                                                                        certifications between states by establishing in law a streamlined process
                                                                        through which a state certification agency must accept another state’s cer-
                                                                        tification, which is in keeping with the Uniform Certification Program that
                                                                        allows for a DBE certification to be honored by all recipients in a state. The
                                                                        process should provide for an exception in the event that the state certifi-
                                                                        cation agency can demonstrate good cause for rejecting another state’s cer-
                                                                        tification.
                                                                  Business Development and Supportive Services
                                                                    Challenge: The DBE–SS program (23 USC 140 (c)) provides training, assistance,
                                                                  and services to DBEs with the objective of furthering the development of their com-
                                                                  panies. As previously noted, Congress authorized up to $10 million each fiscal year
                                                                  for the DBE–SS program. While federal regulations provide guidance regarding the
                                                                  types of training, assistance, and services that should be provided (23 CFR 230 Sub-
                                                                  part B) and allow a recipient to establish their own business development program
                                                                  (49 CFR 26.35), these well-intentioned efforts can fall short of effectively supporting
                                                                  DBEs. AGC members are concerned that emphasis on certain services is misplaced
                                                                  and that the consultants hired by recipients to offer services can miss the mark.
                                                                        Recommendation: Congress should reinvigorate the DBE–SS program to en-
                                                                        sure that it focuses on providing the education, training, technical assist-
                                                                        ance, and services that bolster the success of DBEs. Specifically, Congress
                                                                        should place an emphasis on securing financial and bonding services, cer-
                                                                        tification assistance, bidding and estimating, increasing awareness of and
                                                                        compliance with federal requirements for projects, and procuring new
                                                                        equipment and technologies. In addition, Congress should ensure that con-
                                                                        sultants hired to provide any of these resources are have appropriate tech-
                                                                        nical and industry expertise. Finally, Congress should continue to provide
                                                                        funding for the DBE–SS program.
                                                                  Administration of the DBE Program
                                                                    Challenge: The DBE program evolved over the years through various legislative
                                                                  and regulatory changes. AGC members remain concerned with the interpretation of
                                                                  the requirements of the DBE program. In addition, there is not always uniformity
                                                                  in the way the recipients administer the requirements through their respective pro-
                                                                  grams. The construction industry wants to ensure the success of the DBE program.
                                                                  However, the uncertainty and confusion associated with the DBE program’s require-
                                                                  ments, which is in part due to issues with the program’s regulations and guidance,
                                                                  poses a real concern for all contractors. Contractors found to be in violation of the
                                                                  DBE program’s requirements can face suspension, debarment, or civil and/or crimi-
                                                                  nal prosecution—any of these can put a company out of business and a business
                                                                  owner in prison.
                                                                        Recommendation: Congress should initiate a thorough and balanced review
                                                                        of the DBE program. The review should focus on the administration of the
                                                                        program, rely on quantitative and qualitative analyses, and provide ample
                                                                        opportunities for input from all affected or interested parties. The review
                                                                        should also include recommendations for Congress and U.S. DOT’s consid-
                                                                        eration that will ensure the continued success of DBE program in the fu-
                                                                        ture.

                                                                                                             CONCLUSION
                                                                     Again, AGC thanks the Committee for holding this important hearing and looks
                                                                  forward to working with the Committee as works to ensure the continued success
                                                                  of the DBE program.




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                                                                                                                  159
                                                                        Sincerely,
                                                                                                                      JAMES V. CHRISTIANSON,
                                                                   Vice President, Government Relations, Associated General Contractors of America.

                                                                                                            f

                                                                   Statement of the Airport Restaurant and Retail Association, Submitted for
                                                                                        the Record by Hon. Rick Larsen
                                                                     Mr. Chairman and Members of the Committee:
                                                                     Thank you for holding this hearing today. The Airport Restaurant & Retail Asso-
                                                                  ciation (ARRA), representing the businesses, including many small, minority and
                                                                  women owned Airport Concession Disadvantaged Business Enterprises (ACDBEs),
                                                                  that operate the retail stores and restaurants serving airports and air travelers na-
                                                                  tionwide, is seeking your support to ensure the Disadvantaged Business Enterprise
                                                                  (DBE) Program and the ACDBE Program continue and that the ACDBE companies
                                                                  survive this unprecedented air-traffic downturn due to the COVID–19 pandemic.
                                                                  This hearing, focusing on the DBE Program at the Department of Transportation
                                                                  (DOT), is well timed. While we are writing to emphasize that there is a continuing
                                                                  need and compelling government interest in the federal DBE and ACDBE programs
                                                                  and register our strong support thereof, our message today is that unless Congress
                                                                  acts quickly, many of these companies and these programs may not have a future.
                                                                  Without immediate aid, many DBEs and ACDBEs and the important benefits these
                                                                  programs provide our nation’s airports, highway and public infrastructure will be
                                                                  lost. It is that simple.
                                                                       The DBE program is essential to remedy discrimination and its effects on
                                                                       women- and minority-owned businesses while ensuring all businesses can
                                                                       compete for Federal transportation dollars on a level playing field.
                                                                     DOT’s DBE program, since its inception, has been devoted to combatting discrimi-
                                                                  nation, and the continuing effects of past discrimination, in federally assisted high-
                                                                  way, transit and airport programs and projects. ARRA fully supports the core goals
                                                                  and objectives of the DBE program, which are to level the playing field by providing
                                                                  small businesses, like the airport concessionaires within our membership, that are
                                                                  owned and controlled by socially and economically disadvantaged individuals, with
                                                                  fair and significant opportunities to compete for federally funded transportation con-
                                                                  tracts and compete in contracting and business opportunities.
                                                                     The ACDBE program has been instrumental in providing opportunities for small
                                                                  minority and women owned disadvantaged companies to participate in the aviation
                                                                  industry and the airport concessions business. Airports are very challenging envi-
                                                                  ronments in which to start up and operate a business. These companies face large
                                                                  upfront capital expenditures, high construction costs, limited access to capital, high
                                                                  rents and minimum annual guarantees (MAGs} that are required to operate in air-
                                                                  port spaces, and higher operating costs due to the federally regulated safety and se-
                                                                  curity requirements at airports.
                                                                     Even with the DBE/ACDBE programs the barriers to entry are many and sub-
                                                                  stantial. The challenge of survival has never been greater than it is now during the
                                                                  COVID–19 pandemic. While ACDBEs have grown under the Department of Trans-
                                                                  portation and Federal Aviation Administration’s guidance and oversight, and oppor-
                                                                  tunities expanded during the period of continuous growth of air travel, we now face
                                                                  a real threat to the ACDBE program and many small companies and individual
                                                                  owners/operators.
                                                                     Operating within the heavily restricted airport environment, airport conces-
                                                                  sionaires are highly dependent on passenger traffic for their customers and sales.
                                                                  After a period of record passenger growth, within only a few months the pandemic
                                                                  cost airports and their concessionaires about 95% of their passengers and business.
                                                                  Concessionaires were forced to furlough 80–95% of their employees, close the vast
                                                                  majority of their stores and drastically reduce operations for those few that were
                                                                  able to continue operating. Unlike other restaurants and retail operators, airport
                                                                  concessionaires cannot conduct business with the general public outside the airport
                                                                  environment, and thus have not been able to sustain any business through drive-
                                                                  thru, delivery or carry-out sales. They are totally captive to the number of air trav-
                                                                  elers at the airport.
                                                                       Unless Congress acts quickly to provide immediate aid, many of the DBE/
                                                                       ACDBE companies, the program itself and the important benefits these pro-
                                                                       grams provide our nation’s airports, highway and public infrastructure will
                                                                       be lost.




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                                                                    In talking to our members around the country and in every airport, the story is
                                                                  the same. Business has effectively come to a standstill and passengers won’t return
                                                                  until people feel comfortable and safe traveling again.
                                                                    Airline travel has been devastated by the COVID–19 pandemic, and the res-
                                                                  taurant and retail airport industry has been particularly impacted. We have experi-
                                                                  enced, and continue to experience, mounting losses in jobs and revenues. Beyond air
                                                                  carriers and airport operators, our members, airport concessionaires, are the third
                                                                  major partner in the aviation ecosystem that serve air travelers. Airport conces-
                                                                  sionaires completely transform empty airport terminals into vibrant shopping and
                                                                  dining destinations that enhance the travel experience, generate $10B in sales an-
                                                                  nually and employ more than 125,000 workers in steady jobs that provide good pay
                                                                  and benefits and opportunities for advancement. Moreover, airport concessionaires
                                                                  contribute $2.5B in non-aeronautical revenue to airports (approximately 10% of all
                                                                  airport operating revenues) under contracts and agreements that deliver services
                                                                  that travelers and airports need and fuel airport operations, development, bond fi-
                                                                  nancing, and growth.
                                                                    For our members to survive, and continue to make the DOT DBE/ACDBE pro-
                                                                  gram vibrant and effective, we need at minimum:
                                                                    • $3.5B in relief for airport concessionaires; and
                                                                    • $10B for airports in the next COVID–19 package.
                                                                    It is vital that these funds be added to any final negotiated legislation on COVID–
                                                                  19 relief. ARRA, together with the Airport Minority Advisory Council (AMAC), the
                                                                  International Association of Airport Duty Free Stores (IAADFS), the American Car
                                                                  Rental Association (ACRA) and the National Parking Association (NPA), along with
                                                                  the airport trade associations—the Airports Council International-North America
                                                                  (ACI–NA) and the American Association of Airport Executives (AAAE)—are united
                                                                  in requesting at least $13.5B in grants to airports, with $3.5B dedicated to support
                                                                  Minimum Annual Guarantee (MAG) and rent abatement for airport concessionaires
                                                                  at airports across the country.
                                                                    In our reports (attached for the hearing record) Facing Facts: The Survival and
                                                                  Revival of Shopping and Retail Concessions at Airports, ARRA demonstrates that
                                                                  concessionaires cannot survive at current traffic levels and have little chance until
                                                                  passenger traffic returns to near pre-pandemic levels. Airport restaurant and retail
                                                                  concessionaires will lose an estimated $3.4B between now and the end of 2021. In
                                                                  the next 18 months, they will lose 3 years of profit.
                                                                    Most airline, FAA and industry projections show that it will be at least 18–36
                                                                  months, and possibly five years, before the aviation industry returns to normal.
                                                                  Without immediate federal relief, many DBE/ACDBEs and other concessionaires
                                                                  will not survive. Since these companies operate in a highly restricted and federally
                                                                  regulated airport environment, they will live or die based on government policies,
                                                                  travel restrictions, airline schedules, public confidence in the health safety of air
                                                                  travel and other factors over which they have no control—including whether the
                                                                  Congress appropriates targeted relief funding.
                                                                    Airport concessionaires include more than 3,500 small minority and women-owned
                                                                  businesses who operate under the Congressionally authorized ACDBE program,
                                                                  which is administered by DOT/FAA. These businesses’ survival is threatened by the
                                                                  pandemic’s disproportionate negative impact on them. Our fear is that many airport
                                                                  concessionaires will fail to weather this storm without significant financial assist-
                                                                  ance from the federal government and relief from airport rents and MAG payments.
                                                                  Air travel demand must increase substantially beyond what it is now for airport
                                                                  concessionaires to generate sufficient revenue, meet airport rent obligations, pay
                                                                  debt service and rebound as the key component of the aviation system that they
                                                                  were prior to the pandemic.
                                                                    The CARES Act (Phase III) provided passenger air carriers with $50B and air
                                                                  cargo carriers with $8B. Airports received $10B and air carrier associated contrac-
                                                                  tors received $3B in immediate financial aid and for future recovery. Airport conces-
                                                                  sionaires received $0.
                                                                    The $3.5B and the additional $10B airports and concessionaires are requesting
                                                                  are vital to the airport community, and we urge you to ensure that it is included
                                                                  in any legislation aiding the industry. These funds will help sustain airports and
                                                                  speed their recovery by helping them offset the drastic loss of operating revenue,
                                                                  meet debt service obligations and provide MAG and rent abatement to airport con-
                                                                  cessionaires. The requested $3.5B for airport concessionaires MAG and rent abate-
                                                                  ment is the first step in assuring companies survive in the short term but like the
                                                                  airlines and airports, many ACDBEs and airport restaurant and retail conces-
                                                                  sionaires will also need additional financial assistance for continuing operating ex-
                                                                  penses, debt payments, and reopening and rehiring employees to be part of the air-
                                                                  port and aviation industry’s recovery. ARRA is supportive of programs such as the




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                                                                  Payroll Protection Program (PPP) and Main Street Lending Program (MSLP), how-
                                                                  ever these programs are not designed and do not meet the needs of airport conces-
                                                                  sionaires given their unique circumstances and operating characteristics. We sup-
                                                                  port improvements to these programs that are designed to enable ACDBEs and con-
                                                                  cessionaires to benefit, and other legislative and administrative initiatives to give
                                                                  airport concessionaires, and ACDBEs in particular, better access to federal grants
                                                                  and no- or low-interest loan programs, such as SBA and MSLP lending programs
                                                                  and other forms of financial assistance.
                                                                     The requested $13.5B for airport and airport concessions relief—necessary to help
                                                                  airports and concessionaires survive the months ahead—in combination with addi-
                                                                  tional grants and loan programs targeted for airport concessionaires, will help en-
                                                                  sure the continued vitality and survival of DOT’s ACDBE program. ACDBE firms
                                                                  and concessionaires at airports across the country desperately need the support of
                                                                  Congress in order to assure the survival and speedy recovery of our industry and
                                                                  the nation’s economy.
                                                                     We are submitting this statement both to voice our strong support for the DBE
                                                                  and ACDBE programs and to urge Congress to pass financial relief and assistance
                                                                  specifically for airport restaurateurs and retailers and ACDBEs given the unprece-
                                                                  dented and disastrous long-term business impact caused by the pandemic. We are
                                                                  also attaching for the record the statements and testimonials of individual ACDBE
                                                                  companies in strong support of the DBE/ACDBE program. If airport concessionaires
                                                                  do not receive this immediate critical relief, many will cease to exist and this critical
                                                                  program will disappear.
                                                                     For these reasons, ARRA urges Congress to SAVE OUR INDUSTRY and include
                                                                  financial relief and direct assistance to airport concessionaires as it works to miti-
                                                                  gate the severe economic and public health impacts of this unprecedented pandemic.
                                                                     Thank you.

                                                                                                             ABOUT ARRA
                                                                    ARRA represents the companies who operate restaurant and retail stores and
                                                                  shops at airports across the U.S. More than 80% of ARRA Members are ACDBEs—
                                                                  small minority and women-owned businesses. ARRA’s mission is to work collabo-
                                                                  ratively with the airport community and the aviation industry on matters of policy
                                                                  decision-making, with a collective impact on restaurant and retail operators, and
                                                                  also to empower small, minority, women-owned, and disadvantaged businesses to
                                                                  participate in and contribute to the aviation industry.
                                                                                                            ATTACHMENTS

                                                                  Letters and testimonial statements from ACDBE companies
                                                                  [The letters and testimonials are retained in committee files.]
                                                                  ARRA Reports: ‘‘Facing Facts 2: The Survival and Revival of Airport Shopping and
                                                                  Dining—July 2020’’
                                                                  [This report is available online at https://www.arra-airports.com/uploads/1/3/2/1/
                                                                  132108975/arralfacinglfactsl2lthelsurvivallandlrevivalloflairportl
                                                                  shoppinglandldining.pdf and is retained in committee files.]
                                                                  ‘‘Facing Facts: The Survival of Airport Shopping and Dining—June 2020’’
                                                                  [This report is available online at https://www.arra-airports.com/uploads/1/3/2/1/
                                                                  132108975/microsoftlwordl-lfinallarral10lfactsl.pdf and is retained in com-
                                                                  mittee files.]




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                                                                                                            APPENDIX

                                                                  QUESTION FROM HON. TROY BALDERSON TO SANDY-MICHAEL E. MCDONALD, DIREC-
                                                                   TOR, OFFICE OF ECONOMIC AND SMALL BUSINESS DEVELOPMENT, BROWARD COUN-
                                                                   TY, FLORIDA

                                                                     Question 1. Federal and state Miller Acts help protect subcontractors against loss
                                                                  by requiring payment and performance bonds for infrastructure projects. However,
                                                                  some delivery methods, including public-private partnerships do not require the
                                                                  same levels of protection. To help ensure these protections are in place, Rep. Lynch
                                                                  and I introduced H.R. 6359, the Promoting Infrastructure by Protecting Our Subcon-
                                                                  tractor and Taxpayers Act, which would ensure that these protections are applied
                                                                  to TIFIA finance projects. A recent Op-ed from in the Daily Kos, ‘‘Protecting the
                                                                  Builders Rebuilding America,’’ from Wendell Stemley, the Emeritus Director of the
                                                                  National Association of Minority Contractors, spoke in support of H.R.6359, specifi-
                                                                  cally the benefits of ensuring proper payment and performance security is in place
                                                                  on infrastructure projects to protect subcontractors, including Disadvantaged Busi-
                                                                  ness Enterprise program participants.
                                                                     We believe these requirements are needed now more than ever as states are can-
                                                                  celling transportation projects due to the reduced funding. This puts additional risk
                                                                  on contractors’ financial solvency, and therefore adds risk to subcontractors that are
                                                                  part of those projects.
                                                                     Can you speak to the importance of having these protections in place for DBE’s
                                                                  that are subcontracted on large scale multimillion-dollar infrastructure projects if
                                                                  the lead contractor falls into insolvency or experiences financial difficulty, and is un-
                                                                  able to complete the project?
                                                                     ANSWER. Thank you for the question you provided and the opportunity to respond
                                                                  to what I believe is another substantive opportunity to support our DBE’s.
                                                                     One of the main reasons small businesses fail is due to a lack of access to capital.
                                                                  According to Forbes 1, it is the number two reason small businesses or entre-
                                                                  preneurs go out of business—Access to Capital. Unfortunately, many entrepreneurs
                                                                  and small businesses with good plans, innovative ideas and genuine intentions, fall
                                                                  short due to running out of cash and not being able to access capital. This also holds
                                                                  true when you take into consideration the obligations and risk that is taken on
                                                                  every day by the Minority and Woman Owned Businesses who serve as our Dis-
                                                                  advantaged Business Enterprises (DBEs) under Department of Transportation
                                                                  (DOT) contracts. If they are successful in navigating the typical roadblocks of start-
                                                                  ing a business, they must then be able to maintain and continue to get over the
                                                                  hurdles associated with slow payments and address the risks of not being covered.
                                                                  This is stated in your H.R. 6359 as, ‘‘appropriate payment and performance secu-
                                                                  rity’’.
                                                                     Representative Balderson, as you have indicated, now more than ever, and cer-
                                                                  tainly as an impact of COVID–19, DBEs need support. With the reduction in fund-
                                                                  ing projects, they need security and financial assistance as soon as possible. The
                                                                  daily risks that are taken on projects are greater for our smaller businesses and
                                                                  subcontractors then the risks experienced by the prime contractors. What should be
                                                                  an incentive for taking a contract must not also be a deterrent in fear of ‘‘what could
                                                                  happen’’ if I am not protected or covered.
                                                                     The nature of subcontracting places small businesses in the position to be second
                                                                  and third tier performers on a project. It is the consequence of being the second or
                                                                  third tier performer that also dictates the payments and possible profit margins to
                                                                  be made by these companies. They are typically here due to their size and financial
                                                                  capacity. To consider a scenario where a multimillion-dollar project does not con-
                                                                  tinue and the prime contractor, that is a multimillion-dollar company, would have

                                                                    1 Burns, Stephanie. (April 30, 2019). Why Entrepreneurs Fail: Top 10 Causes of Small Busi-
                                                                  ness Failure. Forbes.
                                                                                                                 (163)




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                                                                  recourse and resources if they fell into insolvency is the challenge subcontractors are
                                                                  faced with. Without necessary support and guarantees, our DBE’s are at more risk.
                                                                  With this risk, contracts that should be favorable and inviting from DOT, unfortu-
                                                                  nately, appear far more intimidating and extremely risky.
                                                                     H.R. 6359, established from the principles of the Miller Act is progress in the
                                                                  right direction. More importantly, it is the necessary incentive, security, and protec-
                                                                  tion the subcontractors need. Whether the responsible party is local or state govern-
                                                                  ment, payments and performance securities for the subcontractor are the right pro-
                                                                  tection. DOT taking the responsibility to ensure that these protections are in place,
                                                                  would speak to several of the objectives of the DBE program; e.g.:
                                                                     1) To create a level playing field on which DBE’s can compete fairly for DOT as-
                                                                        sisted contracts;
                                                                     2) To help remove barriers to the participation of DBE’s in DOT assisted con-
                                                                        tracts;
                                                                     3) To assist the development of firms that can compete successfully in the mar-
                                                                        ketplace outside of the DBE program.
                                                                     In conclusion, the opportunity to share my feedback and perspective is greatly ap-
                                                                  preciated. To allow our DBE’s to grow their businesses, account for their company’s
                                                                  fiscal growth, and to compete in competitive markets where competition is the true
                                                                  concern; rather than losing their revenue or their business because of insolvency
                                                                  due to the financial difficulty of the prime contractor is essential. H.R. 6359 is the
                                                                  road now and in the future for our DBE’s to travel with the support of DOT.

                                                                         QUESTIONS FROM HON. PETER A. DEFAZIO TO JON S. WAINWRIGHT, PH.D.,
                                                                                AFFILIATED CONSULTANT, NERA ECONOMIC CONSULTING
                                                                     Question 1. Some critics say disparity studies should not be given any credibility
                                                                  because they do not adjust for the capacity of DBEs. Is that true?
                                                                     ANSWER. No. That is not true.
                                                                     First, most disparity studies address capacity in many meaningful ways. They
                                                                  consider, for example, qualities like education level, labor market experience, geo-
                                                                  graphic and industry location, and dollar weighting to account for specific industry
                                                                  spending patterns by government agencies.
                                                                     Second, many studies also conduct statistical regression analysis, which dem-
                                                                  onstrates that disparities remain even when holding capacity-related factors con-
                                                                  stant between groups.
                                                                     Third, we must recognize that some aspects of what people think of as ‘‘capacity’’
                                                                  are themselves negatively impacted by current and historical discrimination. There
                                                                  is a long list of examples here, with credit and capital discrimination being the most
                                                                  obvious, differences in firm size and access to formal and informal business net-
                                                                  works both running a close second. Such differences in ‘‘capacity’’ are not evidence
                                                                  of a lack of discrimination. On the contrary, they point to the existence of pervasive
                                                                  discrimination.
                                                                     It’s critical, from a good social science perspective, that in trying to measure dis-
                                                                  crimination, we do not treat factors that are themselves the result of discrimination
                                                                  as endogenous variables.
                                                                     Question 2. Some state and local transportation agencies have excluded certain
                                                                  minority, ethnic or gender groups from their programs because these groups have
                                                                  reached or exceeded ‘‘parity’’ according to a disparity study. Is this the right ap-
                                                                  proach in your opinion?
                                                                     ANSWER. No. It is not the right approach.
                                                                     First, the overwhelming majority of examples of ‘‘parity’’ are quite recent, as some
                                                                  DBE programs have matured, and in my experience they are very rarely statis-
                                                                  tically significant, which mean they don’t actually show ‘‘parity’’ at all.
                                                                     Second, these results, in the rare instances they occur and are also statistically
                                                                  significant, appear in a context in which availability figures have been artificially
                                                                  depressed due to discrimination. As I testified, minority- and women-owned firms
                                                                  are forming at much lower rates than similarly-situated majority male firms be-
                                                                  cause of discrimination. If such firms were forming at the same rate as majority
                                                                  male firms there would be few, if any, findings of ‘‘parity’’.
                                                                     Third, it’s inappropriate to consider a category of DBE to have achieved parity
                                                                  until you see the same result occurring consistently in the private sector—that is,
                                                                  in the Census data. Again, this is like checking the blood pressure of a patient with
                                                                  high blood pressure who is on medication—seeing it’s 120 over 80 and concluding—
                                                                  wrongly—that the patient is cured and can stop their medication.
                                                                     Remember: The only markets in which there has been any attempt to level the
                                                                  playing field are the public contracting markets—like the federally-assisted trans-




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                                                                                                                  165
                                                                  portation markets. In the far larger and more lucrative private sector markets, DBE
                                                                  programs are rare to non-existent and majority male-owned firms generally get al-
                                                                  most all of the business.
                                                                     We also have to remember that majority male-owned firms have literally had cen-
                                                                  turies to grow and establish their firms with effectively no competition from minori-
                                                                  ties and women. Early on the lack of competition was a direct result of laws that
                                                                  intentionally and explicitly disadvantaged minorities and women. Later it was the
                                                                  result of discriminatory practices that were permitted to continue despite civil rights
                                                                  laws.
                                                                     Finally, we should consider the practical effects of suspending the operation of the
                                                                  program every time some subcategory of program participant achieves a modicum
                                                                  of success. This won’t reduce discrimination, it will just tend to increase bank-
                                                                  ruptcies and then those same entrepreneurs, or others like them, will need to be
                                                                  added right back into the program.
                                                                    Question 3. Does it provide useful evidence, in your professional opinion, to com-
                                                                  pare situations where a DBE program is in effect with situations in the same juris-
                                                                  diction where such a program is not in effect?
                                                                    ANSWER. Yes. This evidence can be very powerful when it is available and it tends
                                                                  to highlight the profound importance of the DBE program. Three examples come im-
                                                                  mediately to mind:
                                                                    First, in the immediate aftermath of the Croson and Adarand decisions we saw
                                                                  programs shut down from fear of litigation or enjoined as the result of litigation and
                                                                  we can compare the data from before and after these events.
                                                                    Second, we often see agencies that use goals for their federal DBE program but
                                                                  not for exactly similar spending with their state or local funds.
                                                                    Third in some of the disparity studies I have authored, I’ve had the opportunity
                                                                  to compare DBE participation on contracts with goals to contracts without.
                                                                    In almost every one of the aforementioned cases, when DBE goals are absent
                                                                  minority- and women-owned firms’ participation plummets. This type of evidence
                                                                  shows the profound importance of the DBE program.
                                                                    I would add this one caveat, however. Just because this evidence is powerful does
                                                                  not mean we always want to have it or create it. You have heard testimony during
                                                                  your September 23rd hearing from business owners who explained that without the
                                                                  DBE program they would not get any work at all. We should not undertake experi-
                                                                  ments that end up resulting in harm to disadvantaged firms.
                                                                     Question 4. Are you concerned about so called ‘‘overconcentration’’ of DBEs in spe-
                                                                  cific markets? Why or why not?
                                                                     ANSWER. I see several potential problems that might fall under the category of
                                                                  ‘‘overconcentration’’.
                                                                     First, one of the problems is that ‘‘overconcentration’’ has been, defined differently
                                                                  by different people, and this has the potential to lead to hasty and ill-advised policy
                                                                  decisions. For instance, it is demonstrably incorrect to say that simply increasing
                                                                  the number and percentage of DBEs participating in subcontracting on federally as-
                                                                  sisted contracts constitutes ‘‘overconcentration’’. That’s not overconcentration—it’s
                                                                  evidence of the first steps of addressing centuries of discrimination.
                                                                     Second, my experience has been that most examples of so-called overconcentration
                                                                  are recent, temporary, and rarely statistically significant, meaning they don’t really
                                                                  show ‘‘overconcentration’’ at all. We should not permit anomalous improvements in
                                                                  DBE participation to lead to the suspension of DBE programs for some or all DBEs.
                                                                  As I stated above, we should not consider improvements in DBE participation to
                                                                  constitute overconcentration unless they are sustained, statistically significant and
                                                                  reflected in the broader private contracting market.
                                                                     Third, I am concerned about the history of shunting minority- and women-owned
                                                                  firms into those industry areas that tend to have the lowest profit margins and the
                                                                  highest risk. That’s wrong and sadly, that is where we are most likely to see ‘‘over-
                                                                  concentration’’ first. Instead, we should be helping DBEs expand beyond such low
                                                                  margin industries where they have often been concentrated due to discrimination
                                                                  such as lack of access to capital and business networks.
                                                                     Finally, I must add, and as my written testimony demonstrates, that for every
                                                                  single instance in which DBEs have made progress in a particular industry, I can
                                                                  provide dozens of examples of industries in which minority- and women-owned firms
                                                                  are largely, or even completely, excluded.




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                                                                     Question 5. How do you know that the DBE program is working? How do you
                                                                  know that any reduction in disparities is due to the program?
                                                                     ANSWER. I think there are two ways to answer this. First, with reference to the
                                                                  quantitative and qualitative evidence I have seen, and second, with respect to my
                                                                  own first-hand observations of these programs over the years.
                                                                     With respect to evidence, two important data points come to mind. First, in al-
                                                                  most every case where DBE type goals are removed, DBE participation rates subse-
                                                                  quently plummet. That suggests a pretty close relationship between the program
                                                                  and participation rates. Second, in my own studies, I also conducted surveys and
                                                                  interviews to capture what firms actually experience in their day-to-day operation.
                                                                  Minority- and women-owned firms almost universally report that the DBE program
                                                                  is invaluable to them in helping them win contracts and grow their firms. A number
                                                                  of majority male-owned firms also report that they think the program is a positive
                                                                  thing.
                                                                     Second, I have my first-hand observations. The DBE program has made real
                                                                  changes on the ground. Previously there was not staff assigned to monitor con-
                                                                  tracting diversity and provide training and information to DBEs and ACDBEs. To
                                                                  the extent any staff were dedicated to the issue at all, they were fairly low level.
                                                                  Now the rules require that senior DBE staff have direct access to the agency CEO.
                                                                  Previously the federal government did not require prompt pay provisions in every
                                                                  contract funded with federal dollars—now they do. That makes a huge difference—
                                                                  and by the way, those prompt pay provisions help all firms, not just DBEs. There
                                                                  are a lot of changes caused by the DBE Program that I think are genuinely impor-
                                                                  tant in beginning to chip away at the ingrained effects of discrimination. Moreover,
                                                                  as the DBE program has grown and matured, it has improved in its effectiveness.
                                                                  For instance, in recent years recipients of federally assisted transportation funding
                                                                  have dramatically improved the accuracy of goals due to DOT regulations requiring
                                                                  that goal-setting be data-driven. In addition, the program has improved the detec-
                                                                  tion of fraud, abuse and unfair business practices that have long injured DBEs and
                                                                  other small businesses.
                                                                     With all of that said, however, I cannot emphasize enough that we still have a
                                                                  long way to go. The statistics I presented in my testimony are devastating. More-
                                                                  over, I am deeply concerned about the effect this pandemic will have. Remember,
                                                                  all of the data I presented pre-dates the pandemic and it still shows incredibly bad
                                                                  results for firms owned by minorities and women. My colleague Professor Bob
                                                                  Fairlie has already raised the alarm that minority- and women-owned firms are dis-
                                                                  appearing during the pandemic at a much higher rate than majority male-owned
                                                                  firms.1
                                                                     If you really want to say that the program has been such a success that it is no
                                                                  longer needed, you would of course need to see the elimination of disparities in the
                                                                  public sector where goals are utilized and you would want to see that those gains
                                                                  are matched by similar gains in the private sector where goals are generally not
                                                                  used. As my testimony demonstrates, we are definitely not there yet.
                                                                     Question 6. Your research utilizes an impressive amount of federally collected
                                                                  data. Do you have the data you need to conduct these studies and are their other
                                                                  types of data you might need?
                                                                     ANSWER. This is a timely question. As the country rightfully grapples with our
                                                                  national history of racism, Congress is well-positioned to expand the collection of
                                                                  data for researchers like myself who are interested in studying the effects of racial
                                                                  and gender discrimination. This is especially important in the context of the Su-
                                                                  preme Court’s increasingly stringent requirements on legislators who seek to rem-
                                                                  edy discrimination. I would be happy to work with the Committee to discuss this
                                                                  issue at length as it is terribly important. In this context, however, I would raise
                                                                  two actions that the Congress could take immediately:
                                                                     First, reinstate the collection of data that was previously compiled by the Survey
                                                                  of Small Business Finances (SSBF) so that we can monitor discrimination in credit
                                                                  for small businesses owned by women and minorities. The SSBF, previously con-
                                                                  ducted under the auspices of the Federal Reserve Board, in conjunction with the
                                                                  Small Business Administration, was a very detailed survey that oversampled mi-
                                                                  norities and women and therefore allowed us to assess discrimination in access to
                                                                  business credit for small businesses while controlling for many common balance
                                                                  sheet factors. The fact that the government stopped conducting this survey in 2008
                                                                  means that we lost an important source of data that might have helped us better
                                                                  understand the special vulnerability of minority and women owned firms to both the

                                                                    1 Fairlie, Robert (2020). ‘‘The Impact of COVID–19 on Small Business Owners: Continued
                                                                  Losses and the Partial Rebound in May 2020.’’ Working Paper.




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                                                                                                                  167
                                                                  Great Recession and the more recent, and ongoing, pandemic-related economic re-
                                                                  cession and dislocations. It is often said that credit is the life blood of business. If
                                                                  that is true, we must work harder to eliminate discrimination in business lending.
                                                                  That process begins with understanding the problem, not ignoring it by ceasing to
                                                                  collect the data required to understand it.2
                                                                    Second, reverse the elimination of the collection and reporting of information on
                                                                  non-employer firms that recently occurred when the Census Bureau’s Survey of
                                                                  Business Owners (SBO) was eliminated and absorbed into a new survey called the
                                                                  Annual Business Survey (ABS). While there are certain improvements in the ABS
                                                                  compared to the SBO, such as reporting data annually rather than twice per decade,
                                                                  these are dwarfed in importance by the elimination of data on non-employer firms,
                                                                  which constitute more than 80 percent of all businesses in the United States. Non-
                                                                  employer firms are, obviously, a hugely important component of the small business
                                                                  market, and ignoring them in the only federal survey dedicated to collecting infor-
                                                                  mation on minority- and women-owned businesses and business owners is a huge
                                                                  mistake.

                                                                                                                      Æ




                                                                     2 Robb, A. (2010). ‘‘Beyond the late, lamented Survey of Small Business Finances,’’ Newsletter
                                                                  of the Association of Public Data Users, 33, no. 2, March/April.




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