Questions related to the DBE exception issued October 1, 2019
- What does the DBE exception do?
- When do the changes made by the DBE exception take affect?
- Does the DBE exception change the annual and final reporting requirements?
- Does the DBE exception change the specific fair share objectives currently listed on my EPA assistance agreement?
- Does the DBE exception change the fair share objectives I’ve included in my lower tier agreements (e.g. SRF loans, revolving loan programs, subawards, prime contracts)?
- Can I keep my fair share objectives in place for either/both my EPA assistance agreement and lower tier agreements?
- The RAIN on the DBE exception said that the waiver to the Subpart D of Part 33 (fair share objectives) is temporary. If a decision is made to resume the requirements of this Subpart, how will that affect existing assistance agreements with EPA and any lower tier agreements?
- Does the DBE exception change the requirement for DBEs to meet either the 8% or 10% statute certification requirements?
- Does the DBE exception change the requirements to employ the six good faith efforts?
- Does this change the MBE/WBE reporting requirement? Has the Simplified Acquisition Threshold (SAT) changed?
- Does the DBE exception change the recordkeeping requirements?
Answers
What does the DBE exception do?
The DBE exception issued October 1, 2019, temporarily waives the requirements of Subpart D of 40 CFR Part 33 (fair share objectives). In addition, it permanently suspends the EPA certification program which served as a DBE certifying program.
When do the changes made by the DBE exception take affect?
The changes made to the EPA DBE Program through this DBE exception took affect October 1, 2019 but have implications with respect to fair share objectives already established and stated on assistance agreements. Further details on this application are addressed in the following questions.
Does the DBE exception change the annual and final reporting requirements?
No. Reporting continues to be required for assistance agreements where funds are budgeted for procuring construction, equipment, services and supplies (including funds budgeted for direct procurement by the recipient or procurement under subawards or loans in the “Other” category) with a cumulative total that exceeds the threshold amount of $250,000, including amendments and/or modifications. When reporting is required, all procurement actions are reportable, not just that portion which exceeds $250,000.
When reporting is required, annual reports should continue to be submitted by October 30th of each year. Final reports are due by October 30th or 90 days after the end of the project period, whichever comes first.
Download the current EPA Form 5700-52A.
Does the DBE exception change the specific fair share objectives currently listed on my EPA assistance agreement?
Yes. It is EPA’s position that, regardless if the terms and conditions are updated, fair share objective(s) are no longer required, and recipients shall not be required to comply with those specific objectives starting October 1, 2019.
It should be noted that any EPA assistance agreement recipient has the discretion to keep the stated specific fair share objectives in place if it wishes and if it is consistent with state and local law. Should a recipient wish to do so, EPA will not evaluate the recipient on those objectives in terms of compliance or noncompliance; therefore, recipients who choose to keep their objectives in place shall not have any negative repercussions for doing so.
Does the DBE exception change the fair share objectives I’ve included in my lower tier agreements (e.g. SRF loans, revolving loan programs, subawards, prime contracts)?
It depends on how the recipient would like to proceed. If the recipient would like to remove the specific objectives from your lower tier agreements, it may do so. Alternatively, a recipient may also keep those specific objectives in the existing lower tier agreements. It is the recipient’s discretion to remove or keep fair share objectives in lower tier agreements. Recipients are encouraged to notify subrecipients in writing, if specific objectives are being removed from lower tier agreements, however notice to EPA is not required.
Can I keep my fair share objectives in place for either/both my EPA assistance agreement and lower tier agreements?
Yes. While EPA is not requiring the use and statement of fair share objectives, the recipient has the discretion to keep previously negotiated, or accepted, fair share objectives in place both on the EPA assistance agreement or in any lower tier agreement as long as doing so is consistent with state and local law. However, it should be noted that such fair share objective(s) will not be included in any terms and conditions after October 1, 2019. With respect to active EPA assistance agreements, the recipient may continue to use the previous fair share objective(s) regardless if the EPA assistance agreement has been modified with the new term and condition.
The RAIN on the DBE exception said that the waiver to the Subpart D of Part 33 (fair share objectives) is temporary. If a decision is made to resume the requirements of this Subpart, how will that affect existing assistance agreements with EPA and any lower tier agreements?
Should EPA decide to resume requirements found in Subpart D of Part 33 prior to the closeout of your award, EPA will issue instructions on how to comply. EPA will make every effort to be cognizant of any impacts such a change would have on recipients and will take action to minimize or eliminate such impact if possible.
Does the DBE exception change the requirement for DBEs to meet either the 8% or 10% statute certification requirements?
No. While EPA is suspending its own program to certify an entity as a DBE, it does not suspend or affect in any manner the requirement for DBEs to meet the requirements of either the 8% or 10% statute in order to qualify for EPA’s DBE program (see 40 CFR §33.202 and §33.203).
Does the DBE exception change the requirements to employ the six good faith efforts?
No. All recipients, subrecipients (including loan recipients), and prime contractors are still required to employ the six good faith efforts (see 40 CFR Part 33, Subpart C). These requirements include documenting the methods used to adhere to the good faith efforts and to retain such documentation in accordance with the recordkeeping requirements found in 40 CFR Part 33, Subpart E.
Does this change the MBE/WBE reporting requirement? Has the Simplified Acquisition Threshold (SAT) changed?
No. The current MBE/WBE reporting requirement is when the budget for procuring construction, equipment, services, supplies, and subawards (under ‘Other’) exceeds $250,000. Previously, the reporting threshold had been updated and announced through RAIN-2018-G04 which applies to all new awards of EPA assistance agreements and incremental or supplemental funding actions issued on or after October 1, 2018. The threshold of $250,000 matches the increase to the SAT and the threshold will be automatically revised whenever the SAT at 2 CFR 200.88 or successor regulation is adjusted.
Does the DBE exception change the recordkeeping requirements?
No. The requirements for recordkeeping remain unchanged.