If you apply for DBE certification and your certification is denied you can file an appeal to the Department of Transportation’s Departmental Office of Civil Rights. According to the rules governing the DBE program, it is the Department’s policy to make its decision within 180 days of receiving the administrative record.
Many appellants mistakenly believe that this means their decision will be rendered within 180 days of filing the appeal. This is incorrect. The Department gives itself 180 days after receiving the entire administrative record to render a decision. This means that after you file your appeal the DOT will request that the agency which denied you provide their file on the matter. The 180 days doesn’t start until the Department receives that agency’s records.
If the DOT doesn’t make its decision within the 180 time frame, the DOT is supposed to provide “written notice to concerned parties, including a statement of the reason for the delay and a date by which the appeal decision will be made.” While it is helpful when the DOT complies with this requirement it doesn’t help you get a decision any quicker. So what should you do if the DOT takes a long time to decide your DBE appeal?
First, write or call the Departmental Office of Civil Rights and ask where they are in the process. They should readily provide this information to you. If they don’t, you can also do a Freedom of Information Act request to the DOT asking for your entire file which should include any correspondence from the agency that denied your certification and any internal documents that DOT has prepared on your case including draft decisions or notes. Alternatively, you can write the agency that denied you and ask for your entire file including anything they sent to the DOT. Under the rules governing the DBE program you are entitled to access your file. Additionally, many states have Public Records or Open Records laws that require the state agency provide you with your file upon request. Once you know when DOT received the “entire record” you can figure out when your decision was due.
Once you know the status of your appeal, the next step is to ge the DOT to render a decision in a timely manner. This may mean getting your elected representative involved or even filing suit against the DOT.
We recently learned that the Departmental Office of Civil Rights purportedly has a backlog of DBE appeals that have not been decided. This backlog is being blamed on “an unusually heavy docket and diminished staff”. We did a FOIA request to the DOT and learned that as of February 2014 there were at least 79 firms whose decisions were beyond the 180 day mark.
If you have a question about why your DBE appeal decision is delayed or you want to explore options to expedite a decision on your case give us a call at (305) 755-9551 or email me at email@example.com