On October 3, 2025, the Department of Transportation (“DOT”) published an interim final rule amending the Airport Concession Disadvantaged Business Enterprise (“ACDBE”) and the Disadvantaged Business Enterprise (“DBE”) to ensure that those programs “operate in a nondiscriminatory manner … without regard to race or sex.”  The rule can be found here. See 49 C.F.R. Parts 23 and 26. A central driver of the change is DOT’s judicial and constitutional concern that the longstanding race- and sex‑based presumptions embedded in prior DBE rules violated the Equal Protection Clause. The new rule removes those presumptions. Because the change involves constitutional risk, DOT invoked the “good cause” exception under the Administrative Procedure Act to issue the rule without prior notice and comment, and to make it effective immediately.

Dramatically changing the rules for DBE/ACDBE’s to obtain certification, the new Rule removes presumptions existing under prior DBE/ACDBE rules that women and certain racial or ethnic minorities were rebuttably presumed to be “socially and economically disadvantaged,” simplifying their certification. By removing the race‑ and sex‑based presumptions from its definition, the DOT has converted the standard into a case‑by‑case determination. Going forward, all applicants (regardless of race, ethnicity, or gender) must make an individualized showing of disadvantage, based on their unique experiences and barriers (e.g., economic hardship, systemic barriers) through evidentiary documentation and a “personal narrative.”

All firms currently certified as DBE or ACDBE will undergo mandatory reevaluation under the new standards. This one-time burden on 41,000 currently certified firms requires them to provide documentation and narratives for reevaluation. During the reevaluation process, certain program functions—such as setting new contract goals or counting DBE participation toward overall goals—are suspended. In effect, recipients cannot enforce DBE goals until the new program completes the reevaluations. Some firms may lose certification if they cannot satisfy the new individualized requirements. During the period when reevaluations are ongoing, recipients shall not set new DBE/ACDBE contract goals or count DBE participation toward those goals. The rule clarifies that recipients’ DBE programs must include mechanisms to monitor whether commitments to DBEs are fulfilled in practice (i.e., that DBEs actually perform the work committed).

The rule’s amendments to reporting and data collection provisions, eliminating requirements to collect race/sex information in certain contexts (e.g., bidders lists) that rest on group assumptions. Disparity studies used in formulating goals will face enhanced expectations for capacity analysis, modeling, and data rigor.

Firms relying solely on race/sex presumptions must now present evidence of disadvantage (e.g., income, business history, financing constraints, market access barriers) via personal narrative and supporting documentation. The timeline for completing the reevaluation process is not fixed and the criteria for acceptable personal narratives and the evidentiary weight of various types of disadvantage are not precisely codified, leaving considerable ambiguity and room for disparate outcomes. Firms should proactively begin preparing Personal Narrative statements and assemble relevant historic records to support reevaluation. A similar process was put in place for the 8(a) program and you can review RKW’s insights here. If you require any assistance, feel free to reach out to us.