The Court Extends and Clarifies the Injunction Barring DBE Program

By: Danielle Dietrich

In late September, a federal judge in Kentucky issued a decision granting a preliminary injunction to partially block the United States Department of Transportation’s Disadvantaged Business Enterprise (“DBE”) program. However, on Halloween, the court issued a supplemental order expanding and clarifying the scope of the reach of the injunction.

A copy of the September decision can be found here and a copy of my blog post on that decision can be found here. The September injunction limited the bar on the DBE program to only projects that the two plaintiffs (Mid-America Milling and Bagshaw Trucking) bid and to the two states where they operate (Kentucky and Indiana).

Judge Gregory F. Van Tatenhove (a President George W. Bush appointed to the bench in 2006) issued the supplemental opinion after the plaintiff moved to clarify the court’s order.

The new opinion and order expand the court’s prior finding, and prohibits the USDOT from mandating the use of race- and gender-based rebuttable presumptions for USDOT contracts impacted by DBE goals upon which the plaintiffs in the case bid – to be effective in any state where they are operating or bidding on such contracts.

This means that the injunction is not limited to just Kentucky and Indiana- it is in effect in any state. However, it is limited only to contracts in which Mid-America Milling and Bagshaw Trucking are actively bidding. This creates an amorphous finding that is entirely dependent on the whims of these two companies and projects that they will bid.

DBEs should note that this decision does not have an immediate effect on any other DBE contracting opportunities outside of those involving these two companies. While further challenges to the program are likely, the DBE program remains intact, for now.

If your company needs assistance with DBE or ACDBE certification, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.

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