Tenn. Comp. R. & Regs. 1680-08-01-.02 - DEFINITION OF TERMS

(1) Disadvantaged Business Enterprise (DBE) - A small business concern:

(a) which is at least fifty-one percent (51%) owned by one or more socially and economically disadvantaged individuals, or, in case of any publicly owned business, at least fifty-one percent (51 %) of the stock of which is owned by one or more socially and economically disadvantaged individuals; and

(b) whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

(2) Small Business Concern - The definition contained in Section .of the Small Business Act (15 U.S.C. 632) shall apply to these regulations, except such term shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which have average annual gross receipts over the preceding three fiscal years in excess of Fourteen Million Dollars ($14,000,000) as adjusted by the United States Secretary of Transportation for inflation.

(3) Socially and Economically Disadvantaged Individuals - Those individuals who are citizens of the United States (or lawfully admitted permanent residents) and who are women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, or Asian-Indian Americans and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8 (a) of the Federal Small Business Act.

(a) The Tennessee Department of Transportation (TDOT) shall make a rebuttable presumption that members of the above listed groups are socially and economically disadvantaged. TDOT may determine on a case-by-case basis, that individuals who are not members of one of the groups listed herein are socially and economically disadvantaged.

(4) The Contract Compliance Office - The division of the Tennessee Department of Transportation that has been delegated the responsibility of monitoring and enforcing the department's DBE Program.

(5) The Tennessee Department of Transportation DBE Review Committee -The committee within the Tennessee Department of Transportation which renders final decisions of the department on DBE certification.

(6) For the purpose of addressing third party challenges, the following definitions shall apply:

(a) Social Disadvantage.

1. Elements of Social Disadvantage.

(i) The individual's social disadvantage must stem from her gender; his or her color; national origin; gender; physical handicap; long-term residence in an environment isolated from the mainstream of American society; or other similar cause beyond the individual's control. The individual cannot establish social disadvantage on the basis of factors which are common to small business persons who are not socially disadvantaged. For example, because of their marginal financial status, many small businesses have difficulty obtaining credit through normal banking channels. An individual predicating a social disadvantage claim on denial of bank credit to his or her firm would have to establish that the denial based on one or more of the listed causes, or similar causes rather than based simply on the individuals or the firm's marginal financial status.

(ii) The individual must demonstrate that he or she has personally suffered social disadvantage, not merely claim membership in a non-designated group which could be considered socially disadvantaged. This can be achieved, for example, by describing specific instances of discrimination which the individual has experienced, or by recounting in some detail how his or her development in the business world has been thwarted by one or more of the listed causes or similar causes. As a general rule, the more specific an explanation of how one has personally suffered social disadvantage, the more persuasive it will be. Substantial weight shall be given to prior administrative or judicial findings of discrimination experienced by the individual. Such findings, however, are not necessarily conclusive evidence of an individual's social disadvantage; nor are they a prerequisite for establishing social disadvantage.

(iii) The individual's social disadvantage must be rooted in treatment which he or she has experienced in American society, not in other countries.

(iv) the individual's social disadvantage must be chronic, longstanding, and substantial, not fleeting or insignificant. Typically, a number of incidents illustrating a person's social disadvantage, occurring over a substantial period of time, would be necessary to make a successful claim, Usually, only by demonstrating a series of obstacles which have impeded one's progress in the business world can an individual demonstrate chronic, longstanding, and substantial social disadvantage.

(v) The individual's social disadvantage must have negatively affected his or her entry into, and/or advancement in, the business world. The closer the individual can link social disadvantage to impairment of business opportunities, the stronger the case. For example, the recipient should place little weight on annoying incidents experienced by an individual which have had little or no impact on the person's career or business development. On the other hand, greater weight should be placed on concrete occurrences which have tangibly disadvantaged an individual in the business world.

2. Evidence of Social Disadvantage.

(i) In addition to a personal statement from the individual claiming to be socially disadvantaged, such evidence may include, but is not limited to: Third party statements; copies of administrative or judicial findings of discrimination; and other documentation in support of matters discussed in the personal statement. Particular consideration and emphasis should be placed on the following experiences of the individual, where relevant: education, employment, and business history. However, the individual may present evidence relating to other matters as well. Moreover, the attainment of a quality education or job should not absolutely disqualify the individual from being found socially disadvantaged if sufficient other evidence of social disadvantage is presented.

(ii) One should consider, as evidence of an individual's social disadvantage: denial of equal access to business or professional schools; denial of equal access to curricula; exclusion from social and professional association with students and teachers; denial of educational honors; social patterns or pressures which have discouraged the individual from pursuing a professional or business education; and other similar factors.

(iii) One should consider, as evidence of an individual's social disadvantage: discrimination in hiring; discrimination in promotions and other aspects of professional advancement; discrimination in pay and fringe benefits; discrimination in other terms and conditions of employment; retaliatory behavior by an employer; social patterns or pressures which have channeled the individual into nonprofessional or non-business fields; and other similar factors.

(iv) One should consider, as evidence of an individual's social disadvantage: unequal access to credit or capital; acquisition of credit under unfavorable circumstances; discrimination in receipt (award and/or bid) of government contracts; discrimination by potential clients; exclusion from business or professional organizations; and other similar factors which have retarded the individual's business development.

(b) Economic Disadvantage.

1. As a general rule, economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities, as compared to others in the same or similar line of business and competitive market area who are not socially disadvantaged.

Notes

Tenn. Comp. R. & Regs. 1680-08-01-.02

Original rule filed September 19, 1984; effective October 19, 1984. New rule filed January 23, 1987; effective March 9, 1987. Amendment filed November 30, 1988; effective January 14, 1989.

Authority: T.C.A. §§ 4-3-2303(2) and 54-1-124; 49 CFR Part 23 ; Public Acts of 1984, Chapter 737.