Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This rule harmonizes state rules and federal
regulations by incorporating the federal regulations on the DBE Program and
provides guidance on the federal regulation and further clarifies state
rules.
(1) The Missouri Highways and
Transportation Commission (commission) adopts the definitions contained in 49
Code of Federal Regulations Section 26.5 except as such words and phrases are
given meaning and definition below. The following words and phrases have the
meaning and definition stated below, exclusively for the purpose of
administering and regulating the Disadvantaged Business Enterprise (DBE)
Program established by the commission in this chapter:
(A) "Commission" means the Missouri Highways
and Transportation Commission, a state commission within the executive branch
of state government created by statute and vested with authority or the
administration of the state highway system by Article I V, Section 29, Missouri
Constitution and section
226.020
of the Revised Statutes of the State of Missouri (RSMo);
(B) "Contractor" means a person or company
which receives a contract directly from the commission or another United States
Department of Transportation (USDOT) recipient in a USDOT-assisted highway,
transit or airport program;
(C)
"CSR" means the Code of State Regulations for the state of Missouri, published
by the secretary of state of Missouri;
(D) "CUF" means commercially useful
function;
(E) "DBE" means a
disadvantaged business enterprise;
(F) "Department" means the Missouri
Department of Transportation or "MoDOT," a constitutional state department
answerable and subordinate to the commission within the executive branch of
Missouri government, unless the context and usage of the term clearly indicates
that it is referring to the USDOT;
(G) "FTA" means the Federal Transit
Administration;
(H) "FHWA" means the
Federal Highway Administration;
(I)
"Firm" means DBE. Furthermore, the firm and any fictitious name used by the
firm must, to the extent required by Missouri law, be properly registered to do
business in Missouri with the Missouri Secretary of State and the Missouri
Department of Revenue before that firm may perform work or sell materials or
supplies in Missouri as a contractor, subcontractor, regular dealer, or as a
DBE firm recognized by MoDOT;
(J)
"USDOT" refers the to the U.S. Department of Transportation, including the
Secretary of transportation, the Office of the Secretary, the Federal Highway
Administration, the Federal Transit Administration and the Federal Aviation
Administration, or any one of these administrative units of the United States
Department of Transportation.
(2) The following words and phrases have the
meaning and definition stated below, exclusively for the purpose of
administering and regulating the DBE Program established by MoDOT in this
chapter:
(A) "CFR" means the Code of
Federal Regulations, published by the Office of the Federal Register,
National Archives and Records Administration, through the U.S. Government
Printing Office, Superintendent of Documents, Washington, D.C.
204029328;
(B) "Commission" means
the Missouri Highways and Transportation Commission, a state agency created by
statute and vested with authority by Article IV, Section 29, Missouri
Constitution;
(C)
"Compliance" when used with respect to MoDOT or another USDOT recipient, means
that recipient has correctly implemented the requirements of 49 CFR part 26.
When used regarding a contractor, subcontractor or supplier on a USDOT-assisted
commission contract with funding authority described in 49 CFR section 26.3 (or
successor funding thereto), "compliance" means that contractor, subcontractor
or supplier has correctly implemented the requirements of this chapter, the
relevant DBE Program provisions of the commission contract, and 49 CFR part
26;
(D) "Contract" means a legally
binding relationship obligating a seller (including but not limited to a
contractor, subcontractor or supplier) to furnish supplies or services
(including but not limited to construction and professional services) and the
buyer to pay for them. For the purposes of this chapter, either a lease or a
subcontract is considered to be a contract;
(E) "Contractor" means a person or firm which
receives a contract directly from the commission or another USDOT recipient in
a USDOT-assisted highway, transit or airport program, to perform construction
(of all types including maintenance and repair) work, project design,
design-build, or other professional services;
(F) "CSR" means the Code of State
Regulations for the state of Missouri, published by the secretary of
state of Missouri;
(G) "DBE" means
a disadvantaged business enterprise;
(H) "Department" means the Missouri
Department of Transportation or "MoDOT," a constitutional state department
answerable and subordinate to the commission within the executive branch of
Missouri government, which entity is also described in Missouri law as the
Missouri Highways and Transportation Department; unless the context and usage
of the term clearly indicates that it is referring to the United States
Department of Transportation or "USDOT";
(I) "Disadvantaged business enterprise" means
a for-profit small business concern-
1. That
is at least fifty-one percent (51%) owned by one or more individuals who are
both socially and economically disadvantaged or, in the case of a corporation
or other business entity, in which fifty-one percent (51%) of the stock or
shares are owned by one or more socially and economically disadvantaged
individuals; and
2. Whose
management and daily business operations are controlled by one or more of those
socially and economically disadvantaged individuals who own it;
(J) "FAA" means the Federal
Aviation Administration within USDOT, including its administrator and his or
her designees;
(K) "FHWA" means the
Federal Highway Administration within USDOT, including its administrator and
his or her designees;
(L) "FTA"
means the Federal Transit Administration within USDOT, including its
administrator and his or her designees;
(M) "MoDOT" means the Missouri Department of
Transportation, which is also described in Missouri law as the Missouri
Highways and Transportation Department;
(N) "Noncompliance" when used with respect to
MoDOT or another USDOT recipient, means that recipient has not correctly
implemented the requirements of 49 CFR part 26. When used regarding a
contractor, subcontractor or supplier on a USDOT-assist-ed commission contract
with funding authority described in 49 CFR section 26.3 (or successor funding
thereto), "compliance" means that contractor, subcontractor or supplier has not
correctly implemented either the requirements of this chapter, or the relevant
DBE Program provisions of the commission contract, or 49 CFR part 26, or a
combination of those legal requirements;
(O) "Race- and gender-conscious" measure or
program is one that is focused specifically on assisting only businesses owned
and controlled by members of certain racial groups and/or the feminine gender,
such as businesses which qualify for DBE Program certification under USDOT's
definition of a "socially and economically disadvantaged individual" at 49 CFR
section 26.5, using a rebuttable presumption to classify persons as
"disadvantaged" or not based upon their race, national origin or ancestry, or
female gender;
(P) "Race- and
gender-neutral" measure or program is one that is, or can be, used to assist
all small businesses, regardless of the race, national origin or ancestry, or
gender, of the persons who own and control those businesses;
(Q) "Recipient" is any entity, public or
private, to which USDOT financial assistance is extended, whether directly or
through another recipient, through the programs of the FAA, FHWA, or FTA; or
else it is an entity that has applied for such assistance. MoDOT is usually a
"primary recipient" of USDOT financial assistance, but then MoDOT may pass some
of that funding through to other recipients. A person or firm which is
providing construction, design or other professional services, or materials,
supplies or equipment, for a recipient's USDOT-assisted project as a
contractor, subcontractor or supplier, is not a "recipient" for the purposes of
this chapter;
(R) "Small business
concern," with respect to firms seeking to participate as DBEs in
USDOT-assisted contracts, means a small business concern as defined pursuant to
section 3 of the Small Business Act and Small Business Administration
regulations implementing it ( 13 CFR part 121 ), that also does not exceed the
cap on average annual gross receipts specified in 49 CFR section
26.65(b);
(S) "Socially and
economically disadvantaged individual" means any individual who is a citizen
(or lawfully admitted permanent resident) of the United States and who is-
1. Any individual who a recipient finds to be
a socially and economically disadvanaged individual on a case-by-case
basis;
2. Any individual in the
following groups, members of which are rebuttably presumed to be socially and
economically disadvantaged:
A. "Black
Americans," which includes persons having origins in any of the black racial
groups of Africa;
B. "Hispanic
Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican,
Central or South American, or other Spanish or Portuguese culture or origin,
regardless of race;
C. "Native
Americans," which includes persons who are American Indians, Eskimos, Aleuts,
or native Hawaiians;
D.
"Asian-Pacific Americans," which includes persons whose origins are from Japan,
China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea),
Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S.
Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth
of the Northern Marianas Islands, Macao, Figi, Tonga, Kirbati, Juvalu, Naura,
Federated States of Micronesia, or Hong Kong;
E. "Subcontinent Asian Americans," which
includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan,
the Maldives Islands, Nepal or Sri Lanka;
F. Women;
G. Any additional groups whose members are
designated as socially and economically disadvantaged by the U.S. Small
Business Administration (SBA), at such time as the SBA designation becomes
effective;
3. Provided,
however, that no individual can qualify as "economically disadvantaged" or be
considered "socially and economically disadvantaged" if his or her personal net
worth (computed as directed under 49 CFR part 26 and its Appendix E) exceeds
the maximum amount specified in 49 CFR section 26.67(b) and (d), as that amount
may be adjusted by USDOT;
(T) "Subcontractor" means a person or firm
which does not receive a contract directly from the commission or another USDOT
recipient in a USDOT-assisted highway, transit or airport program, but instead
contracts with a contractor or subcontractor in that program, to perform
construction (of any type including maintenance and repair) work, project
design, design-build, or other professional services, to help complete a
USDOT-assisted highway, transit or airport project;
(U) "Supplier" means a person or firm which
provides exclusively materials, supplies or equipment, but not construction,
design, or other professional services, by contract with the commission or
another USDOT recipient, or with a contractor or a subcontractor;
(V) "TEA-21" means the federal Transportation
Equity Act for the 21st Century,
Public Law
105-178, 112 Stat. 107 et seq., and any of its
sections or provisions;
(W) "USDOT"
refers the to the U.S. Department of Transportation, including the secretary of
transportation, the office of the secretary, the FHWA, the FTA and the FAA, or
any one of these administrative units of the U.S. Department of
Transportation;
(X) "USDOT-assisted
contract" means any contract between the commission (or other USDOT recipient)
and a contractor or supplier funded in whole or in part with USDOT financial
assistance. This term also includes lower tier contracts between the contractor
and a subcontractor or a supplier, or between a subcontractor and a supplier,
for any services or supplies needed to perform the contract work which is being
funded in whole or in part with USDOT financial assistance.
(3) Throughout this chapter, the
term "firm" shall be used to refer to any private legal person or business
entity which may lawfully exist under the laws of Missouri or its state of
creation, and which may contract to perform any services, or to provide or sell
any materials or supplies. The term "firm" shall be deemed to include (but not
be limited to) an individual, corporation, partnership, limited partnership,
joint venture, limited liability company, or a professional corporation.
However, the term "firm" shall not include any "not-for-profit" corporation or
other "not-for-profit" entity, and shall not include any public governmental
entity. Furthermore, the firm and any fictitious name used by the firm must, to
the extent required by Missouri law, be properly registered to do business in
Missouri with the Missouri Secretary of State and the Missouri Department of
Revenue, before that firm may perform work or sell materials or supplies in
Missouri as a contractor, subcontractor, supplier, or any DBE firm recognized
by MoDOT.
*Original authority: 226.150, RSMo 1939, amended
1977.