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Avoiding Commercially Useful Function (CUF) Investigations when Doing Business with Disadvantaged Business Enterprise


A national pipe supplier recently agreed to pay a $4,950,000 fine to settle an investigation by the U.S. Attorney’s office. The supplier agreed that it participated in transactions in which a certified Disadvantaged Business Enterprise (DBE) acted “merely as a pass through” and did not perform a “commercially useful function” (CUF) on U.S. Department of Transportation (DOT) projects.

The DOT has the most complete regulations on DBE participation goals.  Various federal agencies, states and local governments have passed regulations similar to the DOT standards for public procurement. DBE regulation enforcement actions result in fines and jail time for individual business people that participate in illegal transactions.  
DOT regulations do not allow the DBE to be an “extra participant in a transaction, contract or project, through which funds are passed in order to obtain the appearance of DBE participation.” A DBE performs a CUF when it is actually performing, managing, and supervising the work. To perform a CUF with respect to materials, the DBE must be responsible for negotiating price, determining quality and quantity, ordering the material and paying for the material.

Government agencies are enforcing disadvantaged business participation more aggressively. What are the various federal and state regulations about disadvantaged business participation?  Do these rules match the reality in the field?  How are disadvantaged business participation rules enforced?  What are the critical features of legitimate disadvantaged business participation?  What are the “Red Flags” that will attract civil rights investigations?  Are you working with any “brokers” or paper pushers” that have no active participation in the project?

Did you know that the total value of new federal construction in the U.S. was $22.9 billion in 2014?  Did you know that under federal statutory goals up to 39% of prime and subcontracts will be performed by Disadvantaged Business Enterprises?  Did you know that 39% of $22.9 billion = $8.93 billion?  Is this an opportunity?  Are there any risks?

 

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