Once a firm has been certified as a DBE it cannot be removed from the DBE program without a decertification proceeding. The firm will remain certified for at least three years or until its certification has been removed in a formal decertification proceeding. There is only once exception to this rule. A DBE firm can be removed without a proceeding  when the DBE firm does not dispute that the PNW of the certifying owner(s) exceeds the PNW requirement.

How DBE Decertification Proceedings are commenced.

 Decertification proceedings can commence for a number of reasons.  Typically, decertification proceedings are commenced because (a) a third part complains about the DBE companies eligibility, (b) the certifying agency initiates the proceedings based on its own information or information it receives, (c) DOT directs the certifying agency to initiate proceedings or (d) the DBE firm provides information  that results in decertification.  

DBE firms submit a number of documents that can trigger decertification. These documents include, the general statement of compliance, the Personal Net Worth Statement, the Notice of Change and the No Change Affidavit. Inconsistencies or changes in these documents can cause a firm to be decertified.

Once a decertification proceeding is initiated, the burden of proof is on the agency to show by a preponderance of the evidence (51% of the evidence favoring decertification) that the DBE does not meet the requirements for certification.  The agency must create a complete verbatim record and staffers who make recommendations regarding decertifying DBE firms cannot be decision-makers at the decertification hearing.

 Appealing Decertification.

 A DBE firm remains certified while the agency makes its final decision. However, once the decision is final, the DBE firm is decertified even if the decision is appealed to the DOT. Once the agency has made the decision to decertify the firm, an appeal must be taken to the DOT Office of Civil Rights within 90 days of the final decision.  The DOT has 180 days after receipt of the record to make its decision. Therefore, based on the time it takes to obtain the record and the typical time to complete an appeal, the entire process can take up to 7 months or more to complete.

A review by DOT is not a “de novo“ review. In other words, DOT does not conduct a separate hearing on eligibility. Rather, DOT reviews the record and determines if the agency’s decision was “substantially supported by the evidence”.  As long as there is evidence in the record which supports the agency’s decision, DOT will uphold the decertification decision. DOT can also reject the decertification decision and certify a decertified firm. On the other hand, DOT can also reject a certification decision and remove a DBE’s status itself. If DOT determines that the record is deficient, it can remand or send the case back to the agency for more information. Once the DOT has made its decision a party wishing to challenge the DOT must take their case to federal court.

 If your firm is facing decertification you don’t have to take on the fight alone.  At Kleiner & Cazeau, we have experience assisting firms facing decertification proceedings. Contact us today at (305) 517-1392 ext 101.

Should you hire an attorney to handle your DBE appeal?

Considering what is at stake, hiring an attorney who understands the requirements of the DBE program can be the most cost-effective decision you can make. At Kleiner & Cazeau, we understand the DBE program and its requirements because we assist our clients in the preparation of their DBE applications. Since we understand the rules we know when an appeal should be taken and when an appeal should not be taken.

We will review your denial letter and your application and determine whether the denial was justified. If the denial was proper, we will determine whether an opportunity to be certified in the future is possible. If we don’t think your firm meets the requirements of the program we will let you know so you don’t unnecessarily expend time, energy, and financial resources towards obtaining certification. If we think you can be certified in the future, we will recommend ways to adjust your business so you can reapply when the time comes.

If denial was improper, we will review the case law and decisions to draft an appeal brief explaining why denial was improper and why the denial decision should be reversed or remanded.

In some rare instances, it may be necessary to file suit to reverse the denial decision. In that case, our litigation department is well prepared to represent you in court. By hiring an attorney who understands the program we can ensure that a record is created that will help you win your case in court.

At Kleiner & Cazeau, we have experience representing clients in both formal and informal DBE certification denial appeals. If your firm has been denied DBE certification and you wish to appeal, please contact us at (305) 517-1392 ext. 102.

DBE Certification Denial Appeal Process

Under the rules of the DBE Program, the Departmental Office of Civil Rights is responsible for processing all appeals of DBE certification denials. The rules specify the following appeals procedures:

Initial Processing

1. Upon receipt of a written appeal, DOCR will review the incoming correspondence to determine whether the appeal was filed within 90 days from the date of denial or if an extension is warranted.
2. If the appeal is filed within 90 days, DOCR will write to the appellant acknowledging receipt of the appeal.
3. At the same time, DOCR will request in writing that the recipient who denied the certification provide copies of all documentation (including hearing transcripts, interviews, applications, etc.) used in making the determination not to certify the appellant.

Review of Documentation and Decision

1. DOCR will review the information submitted by the recipient to determine whether the recipient properly applied the eligibility standards to the firm in accordance with the rules.
2. Only the information originally available to the recipient will be considered during the appeal and the Department bases its decision solely on the administrative record. If any additional information or recent change of circumstances is reported, the potential DBE will be advised to reapply to the recipient, or the information will be referred to the recipient for review and consideration.
3. After reviewing the documentation, DOCR will render one of the following decisions:
   1. The DBE is certified (overturning the denial by the recipient); or
   2. The DBE is not eligible to be certified, and is denied eligibility to participate in the program (upholding the decision of the recipient); or
   3. The case is remanded to the recipient for additional information and/or instruction.
4. All decisions by the Department are administratively final.  If the Department upholds the recipient’s denial or removal of DBE certification and the firm still wishes to participate in the DBE program, the firm must reapply to the recipient within specified timeframes.
5. DOCR will inform both the recipient and the appellant of the results of its decision. DOCR will also notify the Directors of Civil Rights in the Department’s Operating Administrations (for example, the Federal Highway Administration, Federal Transit Administration, etc.) and the Director, Office of Small and Disadvantaged Business Utilization (OSDBU) of the Department’s decision. The Directors of Civil Rights will ensure that appropriate field personnel are made aware of the decisions that would affect the program in their area.

At Kleiner & Cazeau we are experienced in appealing DBE denials. Whether you are appealing informally to the agency which denied your certification or appealing to the Department of Transportation, we can help. Call us at (305) 517-1392 ext. 102.