Since 1987, the U.S. DOT has required that their grantees implement a Disadvantaged Business Enterprise (DBE) program based on regulations found in 49 CFR Parts 23 and 26. The most current regulations provide states with an annual DBE goal-setting methodology. State DOTs must set DBE goals based on demonstrable evidence of the availability of "ready, willing and able" DBE firms. The regulations state that a disparity study can be used to demonstrate availability, but does not require its use. A recent 9th Circuit Court of Appeals ruling, however, has made the use of a valid disparity/availability study a legal requirement to meet the standards expected by the Court. The ruling in the 9th Circuit as well as those in other Appeals Courts demonstrate a trend that a disparity study will be required to justify race-conscious elements of a state DBE program in response to constitutional challenges. This requirement has put state DOTs, especially western states located in the 9th Circuit, in a position that will require them to conduct disparity/availability studies at considerable expense.

The objectives of this study were to (1) provide guidelines for state DOTs to determine when DBE disparity/availability studies are needed, (2) develop a model scope of work to be included in a request for proposals for disparity/availability studies, and (3) develop a model disparity/availability study design.

The final report is now available as NCHRP Report 644: Guidelines for Conducting a Disparity and Availability Study for the Federal DBE Program.