Civil Rights/Affirmative Action
November 1, 2016
The PILOT TEST of new Civil Rights procedures and forms will be extended beyond the
January 31, 2017 anticipated end date. Full implementation and enforcement will
commence after pilot test has concluded.
The Division of Civil Rights/Affirmative Action (CR/AA) Contract Compliance Unit monitors subcontracting,
employment and training opportunities on New Jersey Department of Transportation (NJDOT) federally-funded and
New Jersey state-funded contracts. It ensures that highway construction funds allocated to those contracts are
spent in a manner that encourages and supports employment of individuals regardless of race, color, religion,
sex, national origin, age or disability.
Contract Compliance Unit Responsibilities
The Contract Compliance Unit also monitors prime contractor compliance with federal and state funded
construction contract provisions for
Disadvantaged Business Enterprise (DBE) contractors,
Emerging Small Business (ESBE) contractors,
Small Business Enterprise (SBE) contractors, employment and training. The
NJDOT believes that an effective Contract Compliance program benefits contractors and employees if it can
ensure merit based employment and subcontracting decisions.
By maintaining a Contract Compliance Program, NJDOT ensures the
contractors meet these objectives:
- Subcontracting Goals
To Ensure the participation of DBEs and SBEs as subcontractors in federal and state contracts, according to 49 CFR Part 26 and N.J.A.C. 17:14 (pdf 1m), prime contractors must meet NJDOT’s goals set by the Division of Civil Rights and Affirmative Action.
- Workforce (Equal Employment Opportunity-EEO) Goals
To ensure equal employment opportunity, NJDOT monitors the contractor’s compliance with Executive Order 11246 and 41 CFR Part 60 that prohibits discrimination against minorities and women and requires contractors to apply affirmative action.
The Contract Compliance Unit monitors contractors according to the rules and regulations of the affirmative action aspects of the contractor’s
workforce utilization plans. Contractors and subcontractors are required to submit regular
reports documenting the number of employees and hours worked, with
specific information on new hires, terminations and trainees.
- Training Goals
The training goals are to uphold the goal for trainees to obtain full journey person status through the Federal Highway Administration (FHWA) Initiative. The
Training Special Provisions requires contractors to make every effort to enroll minority and female trainees in the contract training program.
All contractors must comply with the contract requirements as they are outlined in the contract Special Provisions. This section stipulates the
contractor’s DBE and EEO training requirements.
- Documentation Goals
To meet the DBE, SBE, and EEO workforce and training requirements for both state and federally-funded project contracts, the Contract
Compliance Unit requires the contractors to complete and submit specific forms to
the project’s ResidentEngineer.
REVISED Civil Rights Procedure
Due to unanticipated events, the NJDOT
has amended the dates for the pilot test program
Beginning November 1, 2016 and continuing through January 31, 2017, Contractors bidding on NJDOT
Capital Program Management (CPM) Construction projects will participate in a
pilot test of new Civil Rights procedures and forms. The pilot test is designed to acquaint the contractors
with the new procedures and forms and afford contractors the opportunity to test the procedures and forms
prior to their full implementation.
NJDOT will provide feedback to contractors who do not use the forms or follow the procedures during the pilot test period, however,
the new procedures will not be fully enforced until implemented by the Department. The end of the test
period is anticipated to be January 31, 2017 for all of the new procedures, except the
Bidders List – Form CR-261 which has a pilot end date of November 30, 2017.
NJDOT reviewed the comments received on these proposed upcoming changes to Civil Rights contract
language and procedures. The revised changes are summarized in the table below and constitute the
||Procedures Beginning 10/1/16
|Form CR-261 List of All DBE and Non-DBE Firms Providing a Bid or Quote for the Contract
49 CFR Part 26.11(c)
|NJDOT does not currently obtain this information from bidders.
||At the end of the 2017 Federal Fiscal Year (9/30/17), and annually thereafter, NJDOT will require all bidders who bid in that fiscal year, to submit a CR-261. The CR-261 lists all DBE and non-DBE firms who provided a bid or quote to the bidder for work on the project(s) for which bidders submitted a bid. All bidders, regardless of whether or not their bid was successful, must submit a CR-261. The information which must be provided is: firm’s name, address, phone #, email address, status as a DBE or non-DBE, relevant North American Industry Classification System (NAICS) code, and type of work for which quote was solicited/received (Electrical. Paving, etc. and contract items, or parts thereof, to be performed).
|Form CR-266 Schedule of DBE/ESBE/SBE Participation
49 CFR Part 26.53(b)(2) & 26.55
|CR-266 is currently submitted by the apparent low bidder no later than seven days after bid opening as matter of responsibility. Changes to the CR-266 are accepted before contract award.
|All bidders are required to submit the CR-266 at time of bid, as a matter of responsiveness, for any project that has a DBE/ESBE/SBE goal. Changes will not be accepted before contract award.
|Form(s) CR-273 Confirmation of DBE/ESBE/SBE Firm
49 CFR Part 26.53(b)(2)(v)
|NJDOT Civil Rights currently calls to verify the participation of DBE/ESBE/SBE firms listed on the CR-266, including trucker/haulers and regular dealer/suppliers.
||Bidders, as a matter of responsibility, have up to 5 days after Bid Opening
to provide the following forms for each DBE/ESBE/SBE firm listed on the CR-266:
Information provided on the forms is to confirm/verify the information provided on the CR-266, therefore,
it must match the information on the CR-266.
- CR-273 for each DBE/ESBE/SBE firm
- CR-274 for each trucking/hauling firm
- CR-272 for each regular dealer/supplier firm
Any firm listed on the CR-266 will not be counted toward the DBE/ESBE/SBE goal commitment unless the
CR-273, and CR-274/CR-272, if applicable, are submitted within 5 days after Bid Opening. Good faith
effort documentation must be submitted if the goal has not been met.
Also, during the construction phase of a contract, the CR-273, and CR-274/CR-272, if applicable, must
be submitted with any revised CR-266.
|Form CR-274 DBE/ESBE/SBE Trucking Verification
49 CFR Part 26.55(d)
|Form CR-272 DBE/ESBE Regular Dealer/Supplier Verification
49 CFR Part 26.55(e)
|Evidence of Good Faith Effort
CFR Part 26.53 & Appendix A to Part 26
|Good faith effort documentation is currently submitted with the CR-266 by the apparent low bidder no later than seven days after bid opening as matter of responsibility if the goal commitment has not been met.
|If the project has a DBE/ESBE/SBE goal, all bidders will have up to 5 days after Bid Opening to submit good faith effort documentation if they fail to demonstrate verified attainment of the DBE/ESBE/SBE goal. NJDOT will use the standards in the Federal Regulations to determine the adequacy of good faith efforts.
49 CFR Part 26.53(d)
|Rejected apparent low bidders currently appeal decisions by filing a Bid Protest.
||If NJDOT deems that the apparent lowest responsive bidder failed to meet the Contract goal AND failed to demonstrate adequate good faith effort to do so by the end of the 5th day after Bid Opening, and the bid is rejected, the Bidder may request Administrative Reconsideration (AR). (A bidder failing to submit the CR-266 at time of bid does not have the right to request Administrative Reconsideration.) To receive AR, the Bidder must make a written request within 1 State business day of being notified by NJDOT that the bid was rejected. The request must indicate whether the rejected bidder wants AR in-person or via a written review. Regardless of the type of AR requested, within 2 State business days of filing a request for AR, a rejected bidder must submit written documentation or argument proving that the Bidder met the Contract goal, or submitted adequate good faith effort documentation to do so. (This is not an opportunity to submit new information on 1) ways to attain the goal commitment or, 2) new good faith effort documentation.)
|Notification Requirements Before DBE Subcontracts are Changed/Terminated
49 CFR Part 26.53(f)
|Contractors must submit, and obtain approval for, revisions to the CR-266 from NJDOT Civil Rights prior to the revision(s) being enacted.
||In advance of proposed change(s) to the CR-266, contractors must notify in writing, affected DBE/ESBE/SBE firms, the RE, and NJDOT Civil Rights, indicating the reason(s) for termination/change. Affected DBE/ESBE/SBE firms will have 5 State business days to respond to NJDOT Civil Rights, the RE, and the Contractor in writing of the reasons why they object to their services being terminated/changed. NJDOT Civil Rights must review the arguments, and approve or deny such changes BEFORE they are made. Changes made without prior approval by NJDOT Civil Rights will not be counted toward DBE/ESBE/SBE goal attainment.
|Modification of the DBE/ESBE/SBE Goal Commitment
Official Questions and Answers (Q&A's) DBE Program Regulation (49 CFR 26), Transportation.gov U.S. Department of Transportation (last visited May. 23, 2016)
|No changes are currently made to the established DBE/ESBE/SBE goal, but NJDOT Civil Rights takes into consideration good faith effort documentation if changes to the project during the construction phase precludes a contractor from attaining the goal.
||During the project construction phase, if there are significant changes to the project, NJDOT Civil Rights will determine if the changes necessitate a change to the DBE/ESBE/SBE goal commitment percentage. If so, NJDOT Civil Rights will notify the RE and Contractor of the change in the goal commitment percentage and will require the Contractor to submit a revised CR-266, and CR-273s, CR-272s/CR-274s (if applicable), AND any good faith effort documentation needed to meet the revised goal commitment.
|Commercially Useful Function Monitoring
49 CFR Part 26.55(c)
|Commercially Useful Function (CUF) reviews are currently performed informally and not consistently.
||For all DBE/ESBE/SBE firms listed on the CR-266, the RE must conduct a CUF review via the CR-275. The Contractor will not receive credit toward attaining the DBE/ESBE/SBE goal for firms that do not pass the CUF review. The CUF review monitors whether the DBE/ESBE/SBE firms are independently managing, supervising, and performing their own work.
|Prompt Payment of Subcontractors and Suppliers
49 CFR Part 26.29 & NJSA 52:32-41
|NJDOT currently withholds progress payments if the Contractor is delinquent in paying subcontractors or suppliers for work completed satisfactorily according to submitted DL-72s. Civil Rights does not currently verify that a Contractor has made all requisite subcontract payments.
||If the Contractor fails to pay a subcontractor or supplier within 30 days after the subcontractor or supplier satisfactorily completes the specified work, the Department may withhold progress payments from the Contractor, until the Contractor pays the subcontractor or supplier any and all delinquent amounts due, or the contract is terminated, or the matter is resolved under N.J.S.A. 52:32-40 and N.J.S.A. 52:32-41. If the Department receives an allegation from a subcontractor or supplier that the Contractor has not paid the subcontractor or supplier the amount due from a previous progress payment, the Contractor must submit to the RE within 10 days of a request made by the RE, evidence that payment has been made, such as copies of cancelled checks or proof of electronic fund transfers.
NJDOT is also required to verify prompt payment by prime contractors to subcontractors and suppliers. At a future date, NJDOT will be evaluating electronic systems for monitoring all payments to subcontractors and suppliers by prime contractors, and may implement such a system.
|Potential Payment Reduction for Not Attaining Goal or Providing Adequate Good Faith
49 CFR Part 26.13(b) & 26.53(h)
|NJDOT has the right to withhold payment/not process an estimate, or may suspend the Work, wholly or in part.
||If the Contractor fails to meet the contract DBE/ESBE/SBE goal, without demonstrating adequate good faith effort to do so, the Department may make a payment reduction from progress payments, retainage, or the final payment as follows:
DBE/ESBE/SBE Goal Payment Reduction = (CG - AG) x CP
CG = Contract DBE/ESBE/SBE Goal percentage, or approved DBE/ESBE/SBE commitment, or if modified by the Department, the Modified DBE/ESBE/SBE Contract Goal percentage
AG = Attained DBE/ESBE/SBE goal percentage = (total dollar amount paid to DBE/ESBE/SBE suppliers and DBE/ESBE/SBE subcontractors divided by CP) plus the percent value attributed to the Contractor’s Good Faith Effort approved by the Department.
CP = Total Adjusted Contract Price less the payment adjustments for FINAL LAYOUT, PERFORMANCE BOND AND PAYMENT BOND, and DBE Goal Payment Reduction.