If your company has applied for Disadvantaged Business Enterprise (DBE) certification, you're familiar with the considerable time and effort involved in preparing the application materials and undergoing the site visit. Naturally, it can be immensely frustrating if the agency rejects the application. However, it’s essential to know that you have the right to appeal, and this blog will outline the steps involved in that process.
To qualify for DBE certification, your business must be owned and managed by individuals from specific groups that have been historically socially and economically disadvantaged. These groups include women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, and Subcontinent Asian Americans. However, merely belonging to these groups is not sufficient.
The certifying agency may reject your application for various reasons, even if the owner is a member of one of the aforementioned groups. In future blog posts, I will delve into common reasons for application denials. However, it is important to understand that these decisions can and often should be appealed.
If agency denies your company’s DBE application, it must furnish you with a written explanation detailing why it was denied, citing specific evidence in record to support the decision. Agencies often neglect to cite evidence of record, and often issue denials that merely conclude that your business does not qualify. Upon request, the agency must also provide you with all the information that it used it reaching its decision.
If your application is denied and you believe that your business qualifies for DBE certification, you have two options. First, is to wait and reapply after a waiting period, usually twelve months. The advantage of waiting and reapplying is that you can take that time to tweak any issues with your application or correct barriers to certification- such as certain disqualifying provisions of your corporate documents. This waiting period also gives you time to hire an attorney experienced in this area to review and correct any issues from your first application.
The other option is to appeal. However, if you choose to appeal, you cannot modify or add to your application materials. A competent attorney can help you decide whether to wait and reapply or proceed with an appeal. They can explain how the evidence in the record may support your position and whether the agency may have misapplied the regulations in its decision.
You file your appeal with the United States Department of Transportation (USDOT). This appeal is due within 90 days of the date of the denial, pursuant to 49 CFR § 26.89(c). To appeal, you must write a letter outlining the issues with the denial and providing the evidence from your application and interview that supports your company’s eligibility for DBE certification. Having an attorney is not required, but it can be highly advantageous because an attorney can help you present your case clearly and persuasively.
After receiving your appeal, the USDOT requests the record from the certifying agency. Once it receives the record, is reviews your appeal and the underlying record and issues a decision either upholding the certification, remanding (i.e., sending the case back down to the certifying agency) with specific instructions to follow or tells the certifying agency that your business should be certified. This process takes time-a decision may not be made for months after you file your appeal.
If your company needs help with appealing a DBE denial, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.
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