Good Faith Efforts Documentation Under 49 CFR 26.53 (Appendix A)

A prime contractor that bids short of a DBE contract goal is asking the recipient to accept its efforts in place of the result. Under 49 CFR 26.53(a), award turns on one of two showings: participation sufficient to meet the goal, or documentation of “adequate good faith efforts to meet the goal, even though it did not succeed.” The official who decides the second question reads a file. This checklist organizes the file around the questions the reviewer will ask, in the order Appendix A to Part 26 poses them, then covers reconsideration under § 26.53(d) and why the record carries more weight after the September 25, 2026 final rule.

What the submission must contain

Section 26.53(b)(2) fixes the contents of the DBE portion of a bid. The bidder submits the names and addresses of the DBE firms that will participate; a description of the work each will perform; the dollar amount of each firm’s participation; written documentation of the bidder’s commitment to use each listed DBE; a written confirmation from each listed DBE of its participation in the kind and amount of work committed; and, where the goal is not met, evidence of good faith efforts, which must include copies of each DBE and non-DBE subcontractor quote submitted. Under § 26.53(b)(3), a recipient collects this either with the bid, as a matter of responsiveness, or no later than five days after bid opening, as a matter of responsibility.

The recipient’s duty is stated in § 26.53(c): it “must make sure all information is complete and accurate and adequately documents the bidder/offeror’s good faith efforts before committing yourself to the performance of the contract.” The six questions below are how that review proceeds.

1. Did the bidder solicit?

Appendix A, section IV.A, describes the first effort as “conducting market research to identify small business contractors and suppliers and soliciting through all reasonable and available means the interest of all certified DBEs” with the capability to perform the work. Reasonable means include “attendance at pre-bid and business matchmaking meetings and events, advertising and/or written notices.” Timing counts: the bidder solicits “as early in the acquisition process as practicable” and takes “appropriate steps to follow up initial solicitations.”

• The solicitation list was drawn from the UCP directory for the recipient’s state, filtered by the work codes of the scopes offered, and the extract is dated.
• Each notice names the project, the scope offered, the bid date and a contact, and went out early enough for a small firm to price the work.
• A second contact followed the first, by telephone or email, and is logged with the date, the person reached, and the outcome.
• Pre-bid conferences, matchmaking sessions and outreach events attended are named, with dates and the firms met there.
• Advertisements and plan-room postings are retained with proof of publication and the dates they ran.

2. Did the bidder break out work?

Section IV.B asks the bidder to select “portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved,” including “breaking out contract work items into economically feasible units” and, where appropriate, “flexible timeframes for performance and delivery schedules.” The appendix adds that “the prime contractor’s ability or desire to perform these work items with its own forces” does not relieve it of the effort. Section IV.C requires that interested DBEs receive “adequate information about the plans, specifications, and requirements of the contract in a timely manner.”

• A scope-by-scope table of the contract shows which items were offered to DBEs and which the bidder retained, with a stated reason for each retained item.
• Offered items were sized for a smaller firm: a unit split, a phase, or a geographic segment is identified where a full item would have been too large.
• Plans, specifications and quantities reached the solicited firms, and the file shows how (plan-room credentials, download links, courier receipts) and when.

3. Did the bidder negotiate in good faith?

Section IV.D calls for “negotiating in good faith with interested DBEs,” and it names the documentation: “names, addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans and specifications; and evidence as to why additional agreements could not be reached.” On price, the appendix cuts both ways. “The fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder’s failure to meet the contract DBE goal, as long as such costs are reasonable.” At the same time, prime contractors “are not required to accept higher quotes from DBEs if the price difference is excessive or unreasonable.”

• Every DBE quote received is in the file, used or not, with the date and the channel through which it arrived.
• For each DBE not used, a written reason exists and refers to the quote itself: a scope gap, an exclusion, a schedule conflict, or a stated price spread.
• Where price was the reason, the spread between the DBE quote and the quote accepted is computed and written down, not characterized.

4. Did the bidder reject quotes for a legitimate reason?

Section IV.E prohibits “rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilities.” It then rules out a set of reasons in terms: a firm’s “standing within its industry, membership in specific groups, organizations, or associations and political or social affiliations are not legitimate causes for the rejection or non-solicitation of bids.” A capability rejection therefore has to rest on something the bidder actually checked.

• Each capability rejection states what was investigated (references, past projects, workforce, equipment, bonding capacity, licensing) and what the investigation found.
• The rejection memo is dated and identifies the estimator or project manager who made the decision.
• No rejection rests on reputation, hearsay, or membership in any organization.
• Where a non-DBE received the scope instead, the two firms’ qualifications are compared in writing.

5. Did the bidder help with bonding, insurance or credit?

Section IV.F names “making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor.” Section IV.G extends the same expectation to “necessary equipment, supplies, materials, or related assistance or services.” Neither obliges the prime to pay for a subcontractor’s bond; both expect a record of what was offered when a DBE named one of these items as the obstacle.

• The bonding and insurance requirements passed down to subcontractors are stated by scope and are the same for DBE and non-DBE firms.
• Where a DBE cited bonding, credit or insurance as a barrier, the file shows the response: a waiver considered, an introduction to a surety or agent, a joint-check arrangement, or a payment schedule.
• A DBE that declined after assistance was offered is noted, with the date and the reason it gave.

6. Did the bidder use the services available?

Section IV.H asks whether the bidder made effective use of “available minority/women community organizations; minority/women contractors’ groups; local, State, and Federal minority/women business assistance offices” and other organizations that assist in recruiting and placing DBEs. In practice the channels are the recipient’s DBE liaison officer, its supportive-services contractor where one exists, the state small-business office, and the trade associations active in the recipient’s market.

• Contact with the recipient’s DBE liaison officer or supportive-services program is logged, with what was requested and what was received.
• Outreach through contractor associations and community organizations is documented with dates and any lists or referrals obtained.
• Referred firms were then solicited, and the solicitation record (question 1) shows it.

What the reviewer does on its own

Appendix A, section V, gives the recipient work of its own. “At a minimum, you must review the performance of other bidders in meeting the contract goal.” A bidder that missed the goal but “meets or exceeds the average DBE participation obtained by other bidders” may have that weighed in its favor. The recipient may also call the DBEs the bidder lists. The file is thus read against two sources outside the bidder’s control, and an embellished record fails the second.

Reconsideration under § 26.53(d)

A finding that the efforts were inadequate is not the end of the process. Section 26.53(d) requires the recipient to offer administrative reconsideration before the bid is rejected on that ground. The decision is made by “an official who did not take part in the original determination.” The bidder may provide “written documentation or argument concerning the issue” and must have “the opportunity to meet in person” with the reconsideration official. The recipient then issues “a written decision on reconsideration, explaining the basis” for its finding.

Three observations follow. Reconsideration is a chance to explain the record, not to build one; a memorandum dated after bid opening that recounts pre-bid conversations will be read for what it is. The person who made the calls should attend the meeting with the log. And the period for requesting reconsideration, set by the solicitation or the recipient’s DBE program, is short; the request should go in writing the day the determination arrives.

Why the record matters more now

Since October 3, 2025, § 26.55(i) has barred recipients from counting any DBE participation toward goals until the UCP covering them completes the reevaluation described in § 26.111, and § 26.51(h) has paused contract goals for the same period. The final rule put an end date on the process the pause was waiting for. Under § 26.111(c), every UCP must complete its reevaluation of certified firms by December 24, 2026, with one extension of up to 90 days available if requested from OSDBU before the deadline. On completion the UCP reports to DOT how many firms it retained, how many it disqualified, and how many it never processed for want of a response, and within three business days copies “all recipients of DOT funding (certifying and non-certifying agencies) within its jurisdiction.” DOT’s preamble gives the purpose: “to reactivate the goal setting process.”

For a prime contractor the consequences arrive in sequence. Goals return recipient by recipient, on the date each UCP reports completion, rather than on one national date. The directory a bidder solicits from will be smaller than the one it used in 2024 and different in composition: disqualified firms come off it, and firms that never submitted a narrative remain in an unresolved status until March 24, 2027 (later, by 90 days, where the UCP obtained an extension), when § 26.111(d) disqualifies them automatically. And the first goal-bearing lettings after a year-long pause will be reviewed by officials who have not evaluated a good-faith-efforts file in as long. The paper will carry more weight than it did in 2024.

Two exhibits deserve early attention. The solicitation list should be pulled from the directory as it stands after the UCP’s completion notice, and the extract should carry its date, because § 26.55(f) forbids counting a firm “not currently certified” when the contract is executed. The written confirmation from each listed DBE should state the firm’s current status and name its certifying UCP, because a retained-or-disqualified decision is now a discrete event with a letter behind it under § 26.111(a)(4). The procedure for checking a subcontractor’s status is set out in how to verify a DBE subcontractor is still certified, and the contents of the confirmation letter in what the written confirmation must say.

Sources: 49 CFR 26.53 · Appendix A to Part 26 · 49 CFR 26.55 · FR Doc. 2026-19688 (Federal Register, Sept. 25, 2026) · Related: the final rule explained · reevaluation status by state