Members of the DBE Compliance Membership have an appeal kit that drafts the § 26.89 letter, the nonresponse cure letter and the § 26.87 response outline from the firm’s own record. This article explains the rules those drafts rest on.
The final rule of September 25, 2026 changed two words in 49 CFR 26.111 and, with them, the procedural rights of every firm that loses its certification in the reevaluation. A firm removed after its owner’s narrative falls short is disqualified, not decertified. The Department drew the distinction on purpose. The two outcomes rest on different findings, follow different procedures, carry different hearing rights, and lead back into the program by different doors. Only the appeal to the Department is shared.
Why the Department drew the line
Commenters objected that removing firms without the § 26.87 process denied them notice and a hearing before the loss of a property interest. The Department answered by defining terms. A decertification involves a finding that an element of eligibility the firm demonstrated to obtain certification was incorrect or has been overtaken by events, or that the firm failed to cooperate. A disqualification under § 26.111 reflects that the firm failed to demonstrate a new requirement, the same one a first-time applicant must now meet. Because the requirement is new, the burden of proof and due process provisions attached to decertification, §§ 26.61 and 26.87, do not apply.
To remove the ambiguity, the rule substitutes “disqualified” for “decertified” and “reevaluated” for the older term in § 26.111(a)(4) and its Part 23 counterpart. It then adds a protection of its own: every disqualification decision must follow § 26.86(a), the paragraph governing the letter an applicant receives when certification is denied.
The comparison
| Element | Disqualified after reevaluation (§ 26.111) | Decertified (§ 26.87) |
|---|---|---|
| Basis | The owner did not make the showing the amended § 26.67 requires: an objective basis for disadvantage, specific instances of hardship, a comparison to non-disadvantaged individuals with comparable qualifications, and a full description of the economic harm’s type and magnitude, with a PNW statement attached. Nonresponse under § 26.111(d) is a second route to the same result. | A finding that an element the firm proved at certification (size, ownership, control or disadvantage) was incorrect or has been overtaken by events, or that the firm failed to cooperate, for example by not filing a timely Declaration of Eligibility. |
| Burden of proof | On the owner, by a preponderance of the evidence, through the narrative. The preamble states that §§ 26.61 and 26.87 do not apply. | On the certifier. Section 26.87(a) requires it to establish, by a preponderance of the evidence, that the DBE no longer meets the standards of part 26. |
| Procedure | The UCP reviews the narrative and PNW statement and issues a written decision under § 26.111(a)(4): retained or disqualified. For a firm that never filed: a written notice of nonresponse, a fixed cutoff, then disqualification with no further proceedings. | A notice of intent (NOI) by email, stating each reason and identifying the supporting evidence (§ 26.87(c)); a chance to respond; a decision by a person who took no part in the NOI (§ 26.87(f)); a NOD within 30 days of the hearing or written rebuttal (§ 26.87(g)). |
| Hearing rights | None. The rule provides no hearing before a reevaluation decision, and a nonresponse disqualification is expressly made without further administrative proceedings. | The DBE may request an informal hearing by emailing the certifier within 10 days of the NOI (§ 26.87(d)); otherwise it may still submit written information and argument. The hearing officer sets the rules (§ 26.87(e)). |
| Status while pending | Certified until the written decision issues. Afterward the firm is off the directory even if it appeals (§ 26.89: the decision stays in effect until DOT rules). | Certified until the certifier issues a NOD (§ 26.87(h)). Once it does, the same § 26.89 rule applies: the decision stands during the appeal. |
| What the letter must contain | The requirements of § 26.86(a): the reasons for the adverse decision, with specific reference to the evidence in the record supporting each one, and the appeal instructions from the Departmental Office of Civil Rights web page, verbatim. The preamble adds that the letter must “specifically detail the reasons for the decision.” | Under § 26.87(g): the reasons, described with particularity and with specific references to the evidence; the consequences of the decision; and the firm’s appeal rights under § 26.89. |
| Appeal to DOT | § 26.89, emailed as the decision letter directs, within 45 days of the letter’s date. The question is whether the record before the UCP shows the owner met each element of § 26.67. | § 26.89, same channel, same 45 days. The question is whether the certifier carried its burden and followed § 26.87. |
| The way back | Reversal on appeal restores the firm. Otherwise a new application to the UCP, judged as a first-time applicant under § 26.67. The rule cites § 26.86(a) only and is silent on the § 26.86(c) waiting period; ask the UCP in writing. A nonresponsive firm should file the narrative and PNW statement with a request for reconsideration. | Reversal on appeal, or a new application after any waiting period the decision letter states. Section 26.86(c) caps it at 12 months from the day after the letter is emailed, and § 26.86(d) says an appeal does not extend it. |
Telling the two letters apart
A decertification arrives in two stages: a notice of intent that proposes removal and invites a response, then a Notice of Decision. A disqualification arrives once, after the UCP has read the narrative or after the nonresponse cutoff has passed. A decertification letter cites § 26.87 and the eligibility standard the certifier says is no longer met; a disqualification letter cites § 26.111 and § 26.67 and says the firm has been disqualified from the DBE program. A letter that offers an informal hearing belongs to a decertification proceeding.
A third document belongs to neither category. The written notice of nonresponse under § 26.111(d) is not a decision. It reports that no narrative and PNW statement were on file when the UCP finished and that a deadline applies; it carries no appeal rights because nothing has been decided. Our annotated walkthrough of that notice covers what it contains and what to send.
The appeal both firms share
Section 26.89 governs appeals from both outcomes. The appellant emails the appeal as directed in the certifier’s decision letter within 45 days of the date of that letter. The appeal must at a minimum include a narrative explaining fully and specifically why the decision is in error, what outcome-determinative facts the certifier did not consider, and which provisions of part 26 it misapplied. The Department requests the certifier’s complete administrative record, including any hearing recording or transcript, due within 20 days. It affirms a decision that is consistent with the applicable rules and supported by substantial evidence and reverses one that is not, deciding on the facts demonstrated and evidence presented at the time of the certifier’s decision. Its decisions are administratively final unless they say otherwise. The instructions printed in the letter control the address, the method and the deadline; where they differ from this article, the letter governs.
The mechanics are identical; the argument is not. A disqualified firm argues the record: that the narrative did identify an objective basis, did describe specific instances, did compare the owner to peers with comparable qualifications, and did give the harm’s type and magnitude, and that the UCP misread or overlooked those passages. A decertified firm argues the certifier’s failure: that it did not carry its burden, or that § 26.87 was not followed.
The nonresponse disqualification: a separate case
A firm disqualified because no narrative was ever filed may appeal under § 26.89 like any other. But the Department decides on the record before the certifier, and that record contains no narrative. An appeal can contest whether the notice of nonresponse was sent or the cutoff correctly computed; it cannot supply the missing showing. The productive step is to file the narrative and PNW statement with the UCP and ask for reconsideration or, failing that, to ask whether and when a new application will be accepted. Our guide to reapplying after a denial or disqualification orders those steps.
Questions owners ask
Is a disqualification after reevaluation the same as a denial?
Not in name, though the two share a letter. Section 26.111(a)(4) requires the disqualification decision to follow § 26.86(a), the paragraph that governs a Notice of Denial. Because the firm was certified when the process began, the preamble calls the outcome a disqualification rather than a denial or a decertification.
May the UCP hold a hearing anyway?
The rule requires none, and nothing in § 26.111 obliges a UCP to offer one. Nothing forbids a UCP from asking an owner to clarify a passage or supply a document before it decides. A firm that receives such a request should answer promptly and in writing, because the appeal is later decided on the record as it stood when the UCP ruled.
Does the firm stay in the directory during a § 26.89 appeal?
No. Under § 26.89 the certifier’s decision remains in effect until the Department resolves the appeal or the certifier reverses itself. That holds for a disqualification and a decertification alike, and interstate listings that rest on the home-state decision are affected as well.
Does the 12-month waiting period apply after a disqualification?
The amended § 26.111 points to § 26.86(a), which concerns the letter’s content, and says nothing about § 26.86(c), which lets a certifier set a waiting period no longer than 12 months and requires the letter to state when it ends. Whether a UCP will impose one after a reevaluation disqualification is a question for that UCP. If the letter names an end date, § 26.86(d) means an appeal will not push it back.
What happens to contracts already under way?
For a decertification, § 26.87(j) sets the consequences and turns on whether the subcontract was executed before the NOD. The amended § 26.111 does not address contracts in progress after a disqualification. A firm in that position should ask the recipient that awarded the contract, through its DBE liaison officer, how it will treat the work.
Can a firm appeal and file a new narrative at the same time?
The rule does not prohibit doing both. The appeal goes to the Department and is decided on the facts and evidence presented when the certifier ruled; new material does not enter it. A revised narrative goes to the UCP, as a request to reconsider or as a new application. For a firm disqualified for nonresponse, the filing matters more than the appeal, since the record on appeal contains no narrative to review.
A decertified firm has a hearing to request and ten days to request it. A disqualified firm has a letter to read and 45 days to answer it. Neither should be confused with a notice of nonresponse, which asks for a filing rather than an argument. This article describes the regulations as published; it is not legal advice.
Sources: FR Doc. 2026-19688 (final rule, effective September 25, 2026) · 49 CFR 26.86 · 49 CFR 26.87 · 49 CFR 26.89 · Related: The final rule, section by section · UCP directory