| (a) A DBE is considered to perform a commercially useful
function (CUF) if the DBE is responsible for:
(1) the performance of the work subject to the contract
and for the execution of its responsibilities by actually performing,
managing, and supervising the work involved; and
(2) the provision of the materials and supplies used
in the performance of its contract, unless the contract provides for
labor services only and is approved by the department, and includes:
(A) the negotiation of the price of the materials and
supplies;
(B) the determination of the quality, if applicable,
and quantity of the materials and supplies;
(C) the ordering of the material and supplies;
(D) the installation of the material, if applicable;
and
(E) payment for the material.
(b) In determining whether a DBE is performing a CUF,
the department will consider:
(1) the amount of work subcontracted by the DBE;
(2) industry practices;
(3) whether the amount the DBE is paid under the contract
is commensurate with the work actually being performed by the DBE;
(4) the amount of DBE credit claimed for the DBE's
performance; and
(5) any other factor that the department determines
to be relevant.
(c) A DBE does not perform a commercially useful function
if its role is limited to that of an extra participant in a transaction,
contract, or project through which funds are passed in order to obtain
the appearance of DBE participation. In determining whether a DBE
is an extra participant, the department will examine similar transactions,
particularly those in which DBEs do not participate.
(d) A DBE is presumed not to be performing a CUF if
the DBE:
(1) does not perform or exercise responsibility for
at least 30 percent of the total cost of its contract with its own
work force; or
(2) subcontracts a greater portion of the work of a
contract than would be expected on the basis of normal industry practice
for the type of work involved.
(e) A DBE may present evidence to the department to
rebut the presumption provided under subsection (d) of this section.
(f) A decision regarding a DBE's CUF is subject to
review by the appropriate OA, but is not administratively appealable
to DOT.
|
