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Infrastructure Bill Appropriates Funds to Disadvantaged Business Enterprises

H.R. 3864, the Infrastructure Investment and Jobs Act or Bipartisan Infrastructure Bill (BIB), passed a vote by the U.S. House of Representatives on November 5, 2021, and will soon become law upon signing by President Biden. Certain provisions of the Surface Transportation division (Division A) of the BIB will be of particular interest to Disadvantaged Business Enterprises (DBEs) pursuing contracts with the federal government.

At Sec. 11101(e) of Division A, the BIB addresses appropriation of funds to DBEs. It provides, in part, that “10 percent of the amounts made available for any program under Division A (other than section 14004), Division C (Transit), and 23 U.S.C. 403 shall be expended through small business concerns owned and controlled by socially and economically disadvantaged individuals.” The BIB adopts the definition of a “small business concern” from 15 U.S.C. 632 and excludes “any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals that have average annual gross receipts during the preceding 3 fiscal years in excess of $26,290,000, as adjusted annually by the Secretary for inflation.” For the definition of “socially and economically disadvantaged individuals,” the BIB utilizes the meaning given in 15 U.S.C. 637(d) and “relevant subcontracting regulations issued pursuant to the [Small Business] Act, except that women shall be presumed to be socially and economically disadvantaged individuals for purposes of this subsection” of the BIB.

The BIB also places increased emphasis on enforcing compliance with the disadvantaged business enterprises prompt payment rule codified at 49 CFR § 26.29, including requiring the Secretary of the Department of Transportation to increase the ability of the department to track and keep records of complaints and to make that information publicly available. Implementation of this requirement will be important for all government contractors to monitor, regardless of whether they qualify as a DBE.

Given the size and scope of the BIB, Sec. 11101(e) likely appropriates tens of billions of dollars to DBEs on federal transportation and transit projects. Understanding the qualification requirements under the BIB and the Small Business Act will be important for interested DBEs to seek out and get awarded these projects.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 315
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About this Author

Aman Kahlon Construction Attorney Bradley
Partner

Aman Kahlon represents owners, general contractors, and subcontractors in his construction and government contracts practice. His litigation experience covers a wide variety of disputes, including substantial experience in power and energy matters. He advises clients on delay, interference, defective design and negligence claims. Representative actions include:

  • A $60 million breach of contract dispute between a subcontractor and general contractor involving the construction of a power plant in Colorado

  • ...
205.521.8134
Aron C. Beezley Government Contracts Attorney Bradley D.C.
Partner

Aron Beezley is the co-leader of Bradley’s Government Contracts Practice Group. Ranked nationally in Government Contracts Law by Chambers in 2019-2021, named one of the “Top Attorneys Under 40” nationwide in Government Contracts Law by Law360 in 2016-2017, and listed in Washington, D.C. Super Lawyers as a “Rising Star” in Government Contracts Law in 2014-2021, Aron’s vast experience includes representation of government contractors in numerous industries and in all aspects of the government-contracting process, including negotiation, award,...

202-719-8254
Nathaniel J. Greeson Government Contracts Lawyer Bradley Law Firm
Associate

Nathaniel Greeson helps clients solve government contracts challenges. Nathaniel represents clients in a range of government procurement issues, including bid protests, claims, disputes, audits and investigations. He has extensive experience with GAO bid protests, agency-level protests, Court of Federal Claims (COFC) bid protests, and SBA OHA size and NAICS appeals, as well as experience with agency-level requests for equitable adjustments (REA) and claims, and Boards of Contract Appeals claims.

Nathaniel advises government contractors on compliance issues, prime/subcontractor...

202.719.8202
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