When a business finds out that their application for Disadvantaged Business Enterprise (DBE) certification was denied, their first reaction is to appeal. However, appealing the denial may not be the best choice. It may be more prudent for the business to wait and reapply.
The denial of the DBE application is based upon the information and materials submitted with the applicant’s application (and in response to any subsequent requests for more information). The decision on appeal will be based upon the same information – your appeal would argue that the decision-making body made an error. But if there are problems with your application, your appeal will likely be unsuccessful.
Some examples of potential problems with the application are issues with corporate paperwork, lack of technical experience of the disadvantaged owner(s) or failure to submit requested documents. No matter what you argue on appeal, you will not be able to overcome some of these deficiencies.
Obtaining the opinion of an attorney experienced in this area can help you decide what path your business should choose. An attorney who knows the DBE regulations can review the denial and your application materials, and let you know your chances on appeal. They can also guide you in improving your application so that you can reapply after the one year waiting period for reapplication required under 49 C.F.R. § 26.86. This can save you the time and headache of an appeal.
An appeal could take longer than a year. First, you have 90 days from the date of the denial to file the appeal. Then, the department requests a copy of your record from the state-level certifying agency. It may take some time for the department to provide the record. Then, once the record is received, it is the U.S. Department of Transportation’s policy to make decisions within 180 days after receiving the record from the state-level certifying agency. You could be nearing in on one year from the date of denial quickly.