INDIANAPOLIS, Ind. – At the end of August, Indiana became the first state to request a waiver from federal requirements to implement race and gender conscious components of the Disadvantaged Business Enterprise (DBE) Program, as outlined in 49 Code of Federal Regulations, Part 26. If granted, the waiver requested by the Indiana Department of Transportation (“INDOT”), would eliminate contract-specific DBE goals based on race, ethnicity or gender on federally assisted highway construction contracts.
The waiver request is prompted by a U.S. District Court preliminary injunction in the Mid-America Milling Company, LLC (MAMCO) v. U.S. Department of Transportation lawsuit. In the case, Indiana sub-contractor Mid-America Milling Company, LLC, alleges the federal DBE program’s statutes and regulations unlawfully discriminate.
“I am a firm believer in offering equal opportunity for all to compete and succeed. If granted, this waiver will further position Indiana as a state one would want to do business with and as a place to grow your business,” said Gov. Mike Braun.
Under the proposed waiver, INDOT would transition to a race- and gender-neutral implementation strategy. The new methodology for setting goals and certifying businesses would focus exclusively on the availability of economically disadvantaged small businesses within specific geographic and industry markets. Attorney General Todd Rokita is leading a 17-state effort in support of the request for a waiver from the discriminatory and unlawful race and gender-conscious requirements of the U.S. Department of Transportation’s Disadvantaged Business Enterprise (DBE) program.
“Forcing INDOT to prioritize contractors based on race or gender is unconstitutional and undermines fair competition,” said Attorney General Todd Rokita. “Granting the waiver INDOT is requesting is well within the Department of Transportation’s authority and would be a critical step toward ensuring that Indiana’s transportation projects are awarded based on merit, not arbitrary classifications, and aligns with our constitutional duty to uphold equal protection under the law.”
To support small businesses during this transition, INDOT will continue to offer a variety of supportive services to DBEs across Indiana. These services include business development programming, virtual learning opportunities, and DBE forums and networking events.
The proposed waiver is requested for a three-year period, which aligns with the timing of INDOT’s next Disparity Study, expected to be completed in 2028. The results of that study will be used to determine a new DBE goal based solely on economic criteria. During the initial waiver period, INDOT will collect and analyze participation data, continue to submit annual reports to the Federal Highway Association, conduct its full Disparity Study, and follow all federal rules and regulations implemented with respect to DBEs.
