All Federal-aid projects, regardless of system or State-approval status are subject to the legislative and regulatory Disadvantaged Business Enterprise (DBE) requirements. The FHWA must approve each State department of transportation's DBE program and approve the methodology for calculating the overall goal as part of the approval of the State DBE program. The main objective of the DBE Program is to ensure that small businesses owned and controlled by minorities, women, and other disadvantaged individuals have an equal opportunity to participate in DOT funded contracts. Goals for DBE participation are established to serve the public interest in creating a level playing field on which DBEs can compete fairly. State DOTs are required to use race-neutral means (i.e., the award of a contract to a DBE prime contractor through customary competitive procurement procedures) of achieving their goals to the maximum extent possible. When individual contract goals are set based on the existence of subcontracting opportunities for DBE participation, contractors must make good faith efforts to achieve the goal. A contractor cannot be denied award of the contract for failure to meet the DBE goal if adequate good faith efforts are documented. As noted during an FHWA symposium, the administration of the DBE program need not, but may conflict with private sector objectives for timely, low-cost delivery of highway projects.[446]
The requirements of the DBE program could be an impediment to the formation of public-private partnerships. DBE requirements may require contractors to subcontract a certain portion of the work. In addition, prime contractors may have to reach out to business entities with which they do not have a prior or on-going relationship. According to a 2001 GAO Report, 13 State departments of transportation and transit agencies reported incurring $250,000 in litigation costs attributable to the Federal DBE program.[447] Although it has been asserted that the DBE program may have contracting costs, 99 percent of the State departments of transportation and transit authorities surveyed by GAO in 2001 had not conducted surveys or analyses to determine the impact of the DBE program on contracting costs.[448] The USDOT has not conducted such an analysis and the DBE program has never been raised as a bar to the implementation of the projects by public-private partnerships.