Mo. Code Regs. tit. 7 § 10-8.011

Current through Register Vol. 49, No. 21, November 1, 2024.

Section 7 CSR 10-8.011 - Definitions

PURPOSE: This rule harmonizes state rules and federal regulations by incorporating the federal regulations on the DBE Program and provides guidance on the federal regulation and further clarifies state rules.

(1) The Missouri Highways and Transportation Commission (commission) adopts the definitions contained in 49 Code of Federal Regulations Section 26.5 except as such words and phrases are given meaning and definition below. The following words and phrases have the meaning and definition stated below, exclusively for the purpose of administering and regulating the Disadvantaged Business Enterprise (DBE) Program established by the commission in this chapter:

(A) "Commission" means the Missouri Highways and Transportation Commission, a state commission within the executive branch of state government created by statute and vested with authority or the administration of the state highway system by Article I V, Section 29, Missouri Constitution and section 226.020 of the Revised Statutes of the State of Missouri (RSMo);

(B) "Contractor" means a person or company which receives a contract directly from the commission or another United States Department of Transportation (USDOT) recipient in a USDOT-assisted highway, transit or airport program;

(C) "CSR" means the Code of State Regulations for the state of Missouri, published by the secretary of state of Missouri;

(D) "CUF" means commercially useful function;

(E) "DBE" means a disadvantaged business enterprise;

(F) "Department" means the Missouri Department of Transportation or "MoDOT," a constitutional state department answerable and subordinate to the commission within the executive branch of Missouri government, unless the context and usage of the term clearly indicates that it is referring to the USDOT;

(G) "FTA" means the Federal Transit Administration;

(H) "FHWA" means the Federal Highway Administration;

(I) "Firm" means DBE. Furthermore, the firm and any fictitious name used by the firm must, to the extent required by Missouri law, be properly registered to do business in Missouri with the Missouri Secretary of State and the Missouri Department of Revenue before that firm may perform work or sell materials or supplies in Missouri as a contractor, subcontractor, regular dealer, or as a DBE firm recognized by MoDOT;

(J) "USDOT" refers the to the U.S. Department of Transportation, including the Secretary of transportation, the Office of the Secretary, the Federal Highway Administration, the Federal Transit Administration and the Federal Aviation Administration, or any one of these administrative units of the United States Department of Transportation.

(2) The following words and phrases have the meaning and definition stated below, exclusively for the purpose of administering and regulating the DBE Program established by MoDOT in this chapter:

(A) "CFR" means the Code of Federal Regulations, published by the Office of the Federal Register, National Archives and Records Administration, through the U.S. Government Printing Office, Superintendent of Documents, Washington, D.C. 204029328;

(B) "Commission" means the Missouri Highways and Transportation Commission, a state agency created by statute and vested with authority by Article IV, Section 29, Missouri Constitution;

(C) "Compliance" when used with respect to MoDOT or another USDOT recipient, means that recipient has correctly implemented the requirements of 49 CFR part 26 . When used regarding a contractor, subcontractor or supplier on a USDOT-assisted commission contract with funding authority described in 49 CFR section 26.3 (or successor funding thereto), "compliance" means that contractor, subcontractor or supplier has correctly implemented the requirements of this chapter, the relevant DBE Program provisions of the commission contract, and 49 CFR part 26 ;

(D) "Contract" means a legally binding relationship obligating a seller (including but not limited to a contractor, subcontractor or supplier) to furnish supplies or services (including but not limited to construction and professional services) and the buyer to pay for them. For the purposes of this chapter, either a lease or a subcontract is considered to be a contract;

(E) "Contractor" means a person or firm which receives a contract directly from the commission or another USDOT recipient in a USDOT-assisted highway, transit or airport program, to perform construction (of all types including maintenance and repair) work, project design, design-build, or other professional services;

(F) "CSR" means the Code of State Regulations for the state of Missouri, published by the secretary of state of Missouri;

(G) "DBE" means a disadvantaged business enterprise;

(H) "Department" means the Missouri Department of Transportation or "MoDOT," a constitutional state department answerable and subordinate to the commission within the executive branch of Missouri government, which entity is also described in Missouri law as the Missouri Highways and Transportation Department; unless the context and usage of the term clearly indicates that it is referring to the United States Department of Transportation or "USDOT";

(I) "Disadvantaged business enterprise" means a for-profit small business concern-

1. That is at least fifty-one percent (51%) owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation or other business entity, in which fifty-one percent (51%) of the stock or shares are owned by one or more socially and economically disadvantaged individuals; and

2. Whose management and daily business operations are controlled by one or more of those socially and economically disadvantaged individuals who own it;

(J) "FAA" means the Federal Aviation Administration within USDOT, including its administrator and his or her designees;

(K) "FHWA" means the Federal Highway Administration within USDOT, including its administrator and his or her designees;

(L) "FTA" means the Federal Transit Administration within USDOT, including its administrator and his or her designees;

(M) "MoDOT" means the Missouri Department of Transportation, which is also described in Missouri law as the Missouri Highways and Transportation Department;

(N) "Noncompliance" when used with respect to MoDOT or another USDOT recipient, means that recipient has not correctly implemented the requirements of 49 CFR part 26. When used regarding a contractor, subcontractor or supplier on a USDOT-assist-ed commission contract with funding authority described in 49 CFR section 26.3 (or successor funding thereto), "compliance" means that contractor, subcontractor or supplier has not correctly implemented either the requirements of this chapter, or the relevant DBE Program provisions of the commission contract, or 49 CFR part 26, or a combination of those legal requirements;

(O) "Race- and gender-conscious" measure or program is one that is focused specifically on assisting only businesses owned and controlled by members of certain racial groups and/or the feminine gender, such as businesses which qualify for DBE Program certification under USDOT's definition of a "socially and economically disadvantaged individual" at 49 CFR section 26.5, using a rebuttable presumption to classify persons as "disadvantaged" or not based upon their race, national origin or ancestry, or female gender;

(P) "Race- and gender-neutral" measure or program is one that is, or can be, used to assist all small businesses, regardless of the race, national origin or ancestry, or gender, of the persons who own and control those businesses;

(Q) "Recipient" is any entity, public or private, to which USDOT financial assistance is extended, whether directly or through another recipient, through the programs of the FAA, FHWA, or FTA; or else it is an entity that has applied for such assistance. MoDOT is usually a "primary recipient" of USDOT financial assistance, but then MoDOT may pass some of that funding through to other recipients. A person or firm which is providing construction, design or other professional services, or materials, supplies or equipment, for a recipient's USDOT-assisted project as a contractor, subcontractor or supplier, is not a "recipient" for the purposes of this chapter;

(R) "Small business concern," with respect to firms seeking to participate as DBEs in USDOT-assisted contracts, means a small business concern as defined pursuant to section 3 of the Small Business Act and Small Business Administration regulations implementing it ( 13 CFR part 121), that also does not exceed the cap on average annual gross receipts specified in 49 CFR section 26.65(b);

(S) "Socially and economically disadvantaged individual" means any individual who is a citizen (or lawfully admitted permanent resident) of the United States and who is-

1. Any individual who a recipient finds to be a socially and economically disadvanaged individual on a case-by-case basis;

2. Any individual in the following groups, members of which are rebuttably presumed to be socially and economically disadvantaged:

A. "Black Americans," which includes persons having origins in any of the black racial groups of Africa;

B. "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

C. "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or native Hawaiians;

D. "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the Northern Marianas Islands, Macao, Figi, Tonga, Kirbati, Juvalu, Naura, Federated States of Micronesia, or Hong Kong;

E. "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;

F. Women;

G. Any additional groups whose members are designated as socially and economically disadvantaged by the U.S. Small Business Administration (SBA), at such time as the SBA designation becomes effective;

3. Provided, however, that no individual can qualify as "economically disadvantaged" or be considered "socially and economically disadvantaged" if his or her personal net worth (computed as directed under 49 CFR part 26 and its Appendix E) exceeds the maximum amount specified in 49 CFR section 26.67(b) and (d), as that amount may be adjusted by USDOT;

(T) "Subcontractor" means a person or firm which does not receive a contract directly from the commission or another USDOT recipient in a USDOT-assisted highway, transit or airport program, but instead contracts with a contractor or subcontractor in that program, to perform construction (of any type including maintenance and repair) work, project design, design-build, or other professional services, to help complete a USDOT-assisted highway, transit or airport project;

(U) "Supplier" means a person or firm which provides exclusively materials, supplies or equipment, but not construction, design, or other professional services, by contract with the commission or another USDOT recipient, or with a contractor or a subcontractor;

(V) "TEA-21" means the federal Transportation Equity Act for the 21st Century, Public Law 105-178, 112 Stat. 107 et seq., and any of its sections or provisions;

(W) "USDOT" refers the to the U.S. Department of Transportation, including the secretary of transportation, the office of the secretary, the FHWA, the FTA and the FAA, or any one of these administrative units of the U.S. Department of Transportation;

(X) "USDOT-assisted contract" means any contract between the commission (or other USDOT recipient) and a contractor or supplier funded in whole or in part with USDOT financial assistance. This term also includes lower tier contracts between the contractor and a subcontractor or a supplier, or between a subcontractor and a supplier, for any services or supplies needed to perform the contract work which is being funded in whole or in part with USDOT financial assistance.

(3) Throughout this chapter, the term "firm" shall be used to refer to any private legal person or business entity which may lawfully exist under the laws of Missouri or its state of creation, and which may contract to perform any services, or to provide or sell any materials or supplies. The term "firm" shall be deemed to include (but not be limited to) an individual, corporation, partnership, limited partnership, joint venture, limited liability company, or a professional corporation. However, the term "firm" shall not include any "not-for-profit" corporation or other "not-for-profit" entity, and shall not include any public governmental entity. Furthermore, the firm and any fictitious name used by the firm must, to the extent required by Missouri law, be properly registered to do business in Missouri with the Missouri Secretary of State and the Missouri Department of Revenue, before that firm may perform work or sell materials or supplies in Missouri as a contractor, subcontractor, supplier, or any DBE firm recognized by MoDOT.

7 CSR 10-8.011

AUTHORITY: section 226.150, RSMo 1994*; Title 49 Code of Federal Regulations part 26; section 1101(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 113; and MoDOT's approved DBE Program submittals to the U.S. Department of Transportation. Emergency rule filed May 10, 2000, effective May 20, 2000, expired Nov. 6, 2000. Original rule filed May 10, 2000, effective Nov. 30, 2000.

Amended by Missouri Register July 16, 2018/Volume 43, Number 14, effective 8/31/2018

*Original authority: 226.150, RSMo 1939, amended 1977.