Guidelines for Conducting a Disparity and Availability Study for the Federal DBE Program (2010) / Chapter Skim
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Although state DOTs maintain records on their DBE subcontracting, many do not maintain comparable records regarding non-DBE subcontracting. Although non-DBE subcontract data are not necessary to produce the standard types of DBE utilization reports requested by U.S.DOT or the DOT's executive leadership, which include, for example, only that share of construction dollars awarded during a given time to DBEs, such data are critical to producing a high-quality and legally defensible availability or disparity study.
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In the first study, no subcontract data were available from the client. In the second and third studies, the only data available from the client were for prime contracts that happened to have DBE subcontractors.
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Another, simpler example appears in the U.S.DOT's DBE Program guidance: "if 90% of your contract dollars will be spent on heavy construction and 10% on trucking, you should weight your calculation of the relative availability of firms by the same percentages."193 Despite some court rulings warning against the dangers of Simpson's Paradox with respect to over-aggregation by industry, a substantial share of studies still fail to employ detailed industry weights. Of the 28 state DOTs that have performed or are currently performing a disparity or availability study, only three of the eight consultants involved used detailed industry data -- i.e., three-digit NAICS/two-digit SIC or higher -- to construct weighted availability estimates.194 Weighted DBE availability estimates are important because they allow state DOTs to meet the requirement that their annual DBE goals be narrowly tailored to their specific contracting circumstances.
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Extreme cases have required more stringent methods, such as auditing the prime contractor's books or withholding progress payments on current work, to achieve cooperation. Finally, the longer the time from award, the more difficult it will typically be for the prime contractor to provide the 63 197If the state DOT makes local assistance grants to other public entities in the state, and the contracts funded with such grants are subject to the DBE Program then local recipients should be required to collect and maintain the same level of prime contract and subcontract data as the state DOT.
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Where this sampling method must be employed, a study period longer than 5 years may not be feasible or supportable, and is probably not necessary. Impute Missing Data Using Bid Tabulations, Pay Items, or Similar Records If subcontract data are missing and obtaining the information directly from the prime contractors is not feasible, it is still possible to create a proxy for the missing information using bid tabulations, pay items, or similar records.
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