b'28 LEGALLY SPEAKINGDisadvantaged Business Enterprise ProgramsDrastically RevampedDedicated to keeping its members at the forefront in their industryF ederal and state policies giving preference to jobrepealed.By Bob Dunlevey By Marc Fleischauerapplicants, employees, students, or government contractors based upon race or sex have beenProgram significantly impacted by a series of recent courtopponents decisions, Executive Orders, andmost notablythe Interimhave long contended that the system unfairly perpetuated Final Rule of the federal Department of Transportation (DOT)indefinitely preferential treatment for certain protected issued October 3, 2025. The DOTs new rule immediatelyclasses without substantiation of any disadvantage. Several eliminates race- and sex-based presumptions of socialprograms set aside a specific percentage of project funding for and economic disadvantage, declaring such preferencesbusinesses considered to be disadvantaged, solely because unconstitutional. Stakeholders have until November 3, 2025, tothey were part of a particular group that had been subject to submit formal comments that the DOT will consider before thepast discrimination. The new rule aligns the DOTs approach rule becomes final.The Interim Final Rule is available here. with similar constitutional rulings that invalidated race-based Submit your comments through the process outlined on page 2presumptions in the Small Business Administrations 8(a) of the rule.program. Each applicant must now meet strict certification criteria set forth in Section 26.67 of the rule.What the Rule DoesThe Interim Final Rule, revising 49 C.F.R. Parts 23 andApplicants and recertifying DBEs must submit:26, requires all Disadvantaged Business Enterprise (DBE)A personal narrative detailing specific experiences participantsboth current and prospectiveto prove socialof economic hardship, systemic barriers, or denied and economic disadvantage on an individualized basis. Theopportunities in education, business, or employment.previous automatic presumptions for women and certain minority groups (with resulting automatic set-asides) are nowDocumentation quantifying how those disadvantages The InsulatorOctober 2025'