0001 1 THE AMERICAN INDIAN/ ALASKA NATIVE 2 PUBLIC HEARING, COUNSELING SESSION 3 & BUSINESS FAIR 4 NATIONAL CENTER FOR AMERICAN INDIAN 5 ENTERPRISE DEVELOPMENT 6 7 TRANSCRIPT OF PROCEEDINGS 8 January 8, 2004 9 10 The above entitled conference was held 11 at the Northern Hotel, Billings, Montana, on 12 January 7 and 8, 2004. 13 14 15 APPEARANCES: 16 Jeanette L. Brown, Director U. S. Environmental Protection Agency 17 Office of Small and Disadvantaged Business Utilization 18 1200 Pennsylvania Avenue, N. W. Washington, D. C. 20460 19 Kimberly Patrick 20 Attorney Advisor U. S. Environmental Protection Agency 21 Office of Small and Disadvantaged Business Utilization 22 1200 Pennsylvania Avenue, N. W. Washington, D. C. 20460 23 24 25 0002 1 P R O C E E D I N G S 2 9: 15 a. m. 3 MS. BROWN: Good morning. Well, it's 4 time for day two, and I'm hoping that  as I 5 left last night, a lot of you all were still 6 networking, and that's a good thing. And I'm 7 hoping for today you all will get a chance to 8 continue to do that and build on the information 9 that was provided yesterday. 10 Today we're going to take for our 11 portion a different turn here. Yesterday, I 12 gave you a lot of information, and we brought in 13 speakers from various other agencies and 14 different companies to talk to you about direct 15 procurement. 16 Yesterday I told you there were two 17 ways primarily to do business with EPA, 18 directly, and we talked about that yesterday, 19 and now I'm going to talk about the indirect 20 piece and the proposed rule, because this is 21 part of our public policy making process. 22 There is a proposed rule in the Federal 23 Register. It was issued July 24th on this 24 program, and we have three more hearings to do 25 next week, the week after that, and then Alaska 0003 1 in February, and we will be done. 2 We want to talk to you about what the 3 changes are, in particular as it relates to 4 tribes, because this is going to be different. 5 These are tribal entities that are getting 6 monies from EPA. And then also, there's the 7 minority, woman owned businesses. Remember, I 8 said yesterday money is green. You just need to 9 know where to get it. 10 If EPA has a budget of $ 1.2 billion 11 going out in contracts and four times that in 12 grants, you need to follow the money. So, 13 under our grants, there may be procurement 14 opportunities, and we will share with you 15 information about that, because each state, the 16 tribes, non profits, colleges and universities, 17 local municipalities, all get monies from EPA to 18 do a number of things, with water treatment 19 centers, all kinds of stuff. 20 So with that, if the grantee chooses  21 mind you, they have to choose to do it. They're 22 not obligated to contract, but if they go out 23 and contract in any one of four categories  24 equipment, construction, services or supplies  25 then our program kicks in, and we encourage them 0004 1 to use minority and woman owned businesses. 2 So what were those this is a quiz, 3 what were those four categories? 4 AUDIENCE: Equipment. 5 MS. BROWN: Equipment, construction, 6 services, supplies. 7 MS. PATRICK: Wait a minute, there's a 8 prize that goes along with questions. We're 9 running out of ducks because the ducks have 10 become quite a commodity, and so the ducks are 11 now prizes. 12 The first person to speak on that 13 answer was this gentleman here. Do you already 14 have a duck? 15 AUDIENCE: I do. 16 MS. PATRICK: Okay, then you're 17 disqualified. 18 ( General laughter.) 19 MS. PATRICK: And then the next person 20 that answered, do you have a duck? 21 AUDIENCE: No. 22 MS. PATRICK: Okay, sir, you are the 23 proud owner of the cowboy duck. He's all yours. 24 MS. BROWN: There's a story behind the 25 ducks, and quite frankly, it came from Maurice 0005 1 Valasquez, who is the MBE/ WBE Coordinator for 2 this region. 3 We go around the country a lot, and we 4 were looking for, trying to find something that 5 would draw attention to our table when we go 6 around the country. And us being EPA, we have 7 some restrictions on how we can print, and some 8 of the other agencies had full blown color, all 9 kinds of stuff, it was glossy, but we had some 10 restrictions, and ours are basically black and 11 white. 12 So when we sit there, we do have our 13 doing business book, that's about as flashy as 14 we get. So it wasn't drawing attention to our 15 table. So Maurice said, why don't you get some 16 ducks? We said, ducks? He said, yeah. I said 17 I don't know, Maurice, what are you talking 18 about? He said let me find them and I'll get 19 them to you and tell me if you like them. 20 So there's a series of these ducks. We 21 get  oh, we don't have that many left. 22 There's about eight of them. Some are red, 23 white and blue with flags and girl ducks and boy 24 ducks, construction hat ducks, baseball ducks, 25 and we use these as our little mascot, I guess 0006 1 for the EPA. We have one here, Small Business 2 Making a Difference, and we have to put our 3 website on it and it's been approved by OGC, so 4 this is what we give out. And we get so many 5 hits on our website for ducks. 6 I use this internally as well as 7 externally. When I meet with the program 8 offices, the project managers, they get a duck 9 when they are strong supporters of the program. 10 We've also since then incorporated into 11 our award ceremony, our annual award ceremony 12 with the administrators, there is a crystal duck 13 that's awarded to the Program Office and/ or the 14 region with the highest number or percentage in 15 their goals in terms of accomplishment. 16 So this has been a tremendous seller 17 for us, so that's a prized commodity, and 18 especially because I'm limited, my staff limits 19 me on how many I can bring out because we don't 20 have enough to go around. So that's the story 21 behind the ducks. 22 Anyway, yesterday I talked to you about 23 doing business directly or indirectly and today 24 we're going to talk about the rule. But before 25 I do that, there's one thing that I did not 0007 1 think I mentioned and I think I need to say to 2 you, because many of you have since come to me 3 and talked about being subcontractors and some 4 of the problems that you have encountered 5 working with some of the prime contractors and 6 the treatment that you're getting. 7 The thing that I would caution you on, 8 and would strongly suggest you do is to make 9 sure you know what you're getting when you sign 10 up for subcontracts. Read the fine print in 11 those agreements that you are making with those 12 prime contractors. Make sure, because one 13 thing we have come to see, what they talk about 14 at the table and what you might shake your hand 15 on, might be something different when the 16 contract is awarded. 17 You really need to make sure you're 18 talking to your attorneys, not just lip service 19 in terms of if I get a contract you will get so 20 many hours. You need to know how much work and 21 in what area you will be working, and you need 22 something in writing to that effect. 23 A handshake in some people's, some 24 arenas may not mean a lot. It means a lot to 25 me, but in a lot of other places, it may not be 0008 1 worth anything. So you really need to know, 2 because what we see is a lot of the contractors, 3 minority and small woman owned businesses, come 4 into us and say they promised me this and they 5 used me to win the award, but once the award was 6 made, I haven't gotten anything. And when they 7 read the fine print, oh, oh, it's not in there. 8 So after the excitement wears off, and 9 hopefully that will be very soon after you talk 10 with them, make sure you really know and 11 understand what it is you have agreed to, and 12 make sure it's in writing. If you have a good 13 attorney, make sure they look at that and make 14 sure they understand what your obligation is to 15 them and what their obligation is to you. 16 Because all too often what you heard 17 yesterday, for prime contractors any contract 18 award over $ 500,000, they have to have a 19 subcontracting plan, and in that plan they have 20 to identify the type of work that they're going 21 to do with minority, woman owned, small 22 disadvantaged, HUBZone, service disabled. They 23 report back to us, and that's throughout the 24 entire Federal Government, that's not just EPA. 25 But you need to make sure you understand what 0009 1 you're signing up to. 2 Any questions? Comments? 3 ( No response.) 4 All right. Now we're ready for the 5 proposed rule hearing portion today, and we want 6 to talk to you about the proposed changes that 7 we're making to our program, hopefully to make 8 it stronger. It may not be as strong as some 9 people would like it to be, but we're thinking 10 it's going to be a lot better than what it is 11 now. 12 EPA, as a result of the Adarand 13 decision, that was a decision that came out of 14 the Supreme Court back in 1995 when there was a 15 challenge to the state of Colorado state program 16 on government contracting. There was a 17 challenge to how that process was done. A 18 non minority challenged some price preferences 19 that were given to a minority bid, and therefore 20 they won. It was challenged, and as a result we 21 have the Supreme Court decision which now 22 requires, or did require some changes to how we 23 carry out our government contracting. 24 Now we cannot just forcefully impose 25 goals. It's got to be based on the availability 0010 1 of minorities and women in a geographic 2 location. It's got to be tied to something. 3 So we recognize and understand throughout the 4 country those goals are going to be very 5 widespread because it depends on where 6 minorities and women are located and the types 7 of businesses that they are in. 8 For example, in Chicago, which is where 9 we are next week, their goal may be 30% based on 10 the number of minorities and women in that 11 geographic location. But in North Dakota, it 12 could be 2% based on the number of minorities 13 and women in that geographic location. 14 So we use things like the disparity 15 studies, availability analysis, so this is 16 completely different from how we did business in 17 the past. We just basically said, and we would 18 negotiate goals with the states, the grant 19 recipients, we didn't negotiate with tribes, and 20 we'll talk about some of the changes that are 21 coming, or the trust territories. 22 Basically our negotiations went, you 23 had 10% last year, do you think you can do that 24 this year? They said yes or no. They said no, 25 we can we do 8, we said okay and that's what we 0011 1 stuck into the grant. 2 People need to understand as grant 3 recipients, when you receive this money, there 4 is an obligation on our part and yours as the 5 grant recipient, and there could be challenge 6 because these kinds of programs, although we 7 don't consider it an affirmative action program, 8 many people do. And you see in particular out 9 on the west coast, in places like Seattle and in 10 California, programs that make reference to 11 minorities are going away. Like they used to 12 have minority development agencies, they no 13 longer have many of those in some of those 14 states. The states have decided that race is 15 not a factor. 16 We don't consider this to be a minority 17 program, we consider it to be an outreach 18 program. We're saying that minorities and women 19 should be included in the process and should be 20 afforded an opportunity to participate, but you 21 can't do that as minority women and minority 22 business owners if you don't know what the 23 process is. The good old boy network system is 24 alive and well in many portions of the country 25 and we recognize that. 0012 1 We're saying when you get federal 2 money, you need to open up the process and be 3 inclusive so that minorities and women are 4 included. That's not to say that minorities and 5 women are bringing inferior products or services 6 to the table. We're saying that as minority 7 business owners you have to come fully equipped, 8 ready and able to do the job. 9 We recognize and understand that you're 10 out there, so we're tired of excuses saying they 11 can't find us, they can't find you, because look 12 at what's in this room today, you do exist. And 13 so any grant recipient from EPA's funding is 14 encouraged to follow six affirmative steps or 15 good faith efforts to ensure that minorities and 16 women are included in the process. 17 As a result of the Adarand decision, 18 the Federal Government did review the prior 19 administration, I think you heard mend it, not 20 end it, part of that process they went out and 21 did a review of all of the programs to see if we 22 met the federal standard, and we did not. We 23 had some changes that we had to make, and as a 24 result of that, you have the proposed rule. 25 So this is what we're proposing to do 0013 1 and today we'll talk to you about these changes 2 and how it may impact you all as minority 3 contractors and as grant recipients in the case 4 of tribes and the trust territories. 5 By all means we want questions, and I 6 really do mean that. And if you're not sure or 7 don't understand, ask. We started this process 8 probably about three years ago, four years ago, 9 public policy in the making. 10 We've had proposed hearings. We've had 11 a draft proposed rule. We've had several 12 meetings in Albuquerque and other parts of the 13 country. As a result of those very early 14 meetings, we changed the way that we were going 15 to proceed, and so it was comments from everyday 16 people like you all that caused us to shake and 17 come up with this final product. And so now, 18 this is not final, this is the proposed rule 19 now, but I need more comments from you, and so 20 that's why we're here today. 21 So right now, Kimberly, I'm not going 22 to talk as much, Kimberly will get a chance to 23 talk so she's going to go over the major changes 24 to the rule. This is the complete proposed rule 25 here. We have also given you a draft summary of 0014 1 the major elements of the proposed rule, and 2 this is what we're going to go through. 3 I won't go through this document here, 4 but we'll go through this one. This is 5 available for you and you can also get it from 6 our website. The comment period closes January 7 20th, but we're looking to extend it to include 8 the hearing in Alaska that we were just invited 9 to. So we will be working on that when we get 10 back to include probably through the end of 11 February, February 28th at least. February 28th 12 is when the comment period will close. 13 Again, if you have questions or 14 comments, I would strongly encourage you to get 15 those into us. We will be taking notes. We 16 have a court reporter here today, and she will 17 be recording these proceedings so that we can 18 take it back and digest what was given to us, 19 because I can't remember everything now. It 20 gets kind of cloudy for me being on the road as 21 much as we are. But to make sure that we 22 incorporate and really listen to the comments 23 that are being made. 24 So if you have a comment or question, 25 we're going to ask that you use the mike, that 0015 1 you tell us your name and the company and/ or the 2 tribe that you represent. And every time you 3 speak, I need you to say that so she can get 4 that so we will know where the comment is coming 5 from, and then so we can be responsive. Okay? 6 Any questions? 7 MS. PATRICK: Let's first do a couple 8 of legal disclaimer kind of thing here. 9 It needs to be made very, very clear as 10 we've gone across the country, particularly with 11 the hearings we've had with tribes, we've had to 12 be very, very clear in stating that we do not 13 consider these hearings consultation. So I have 14 to say that, put it out and make it clear. 15 We understand that we are not talking 16 to tribal leaders. We are not talking to people 17 who can make decisions for the tribe, but we 18 want to still get to the tribal community and 19 find out what your comments are. This is what 20 this is, an opportunity to get feedback and to 21 hear what's going on. So we want to respect 22 the fact that we are dealing with sovereign 23 nations and the fact that we have consultation 24 policies that are floating out and what the 25 requirements are, so we want to point out that 0016 1 this is not a consultation opportunity. 2 That being said, all the fun legal 3 stuff out of the way, the first major change 4 that we're proposing is a name change. 5 Currently many of you may know of our program as 6 the MBE/ WBE program. We're changing that to be 7 the disadvantaged business enterprise program. 8 We're doing that to be consistent with the 9 Department of Transportation because their 10 program and our program are very similar, and 11 because their program is bigger and more well 12 known than ours is, we figured it would be good 13 to start to get some consistency in the 14 government because a lot of times you see 15 something in different agencies and everybody is 16 all over the place, so we want to get some 17 consistency with the name. So that's why we 18 changed it, and that's the name that's inclusive 19 of everyone, women, minorities, all of that is 20 under one name. 21 The next major change which will really 22 affect a lot of business owners is the fact that 23 for the very first time, EPA will be requiring 24 certification for the businesses under this 25 program. In the past we would accept 0017 1 self certifications. That basically meant you 2 were whatever you said you were. If you said 3 you were a minority, we took that on face value, 4 believed it and moved on. 5 Because of the Adarand decision, we 6 need a whole lot more to back up decisions that 7 we make. We need to be able to show some type 8 of proof that the people that we're dealing with 9 indeed are minority, disadvantaged, woman owned, 10 that type of thing, so we have to go behind a 11 general self certification. 12 To that end, EPA, because we are small 13 and our program is small, we really don't want 14 to get heavy into the certification business. 15 That's just a lot to do. So what we've decided 16 to do is try to make it as easy as possible, not 17 only for us, but also for business owners who 18 may currently hold certifications from different 19 sources. 20 With our program, we're going to accept 21 SBA certifications. We're going to accept 22 Department of Transportation certifications as 23 long as the U. S. citizenship requirement is met. 24 We're going to accept certifications from state 25 government, municipalities, localities, and also 0018 1 from tribes, because we do know that there are 2 some tribes that do certify the tribally owned 3 businesses that are in their community, provided 4 that those certifications meet our standards, 5 meet the standards that are laid out in our rule 6 for eligibility and everything like that. 7 So did everyone get that? That's very, 8 very important, because to you, that means if 9 you already are 8( a) certified, you don't have 10 to go through EPA's whole process. You show us 11 the evidence of your 8( a) certification, we look 12 at that, we accept it, we give you an EPA 13 certification, process over. 14 If you have a DOT certification, you 15 show us that plus proof of U. S. citizenship, 16 you're done. You have an EPA certification. 17 Now, we do know that because our 18 program does have some areas where it's unique 19 and different from DOT and SBA's program, we 20 know right off the bat that there are five basic 21 areas where we'll have to certify the matter of 22 first impression because we're the only ones 23 that certify those entities. 24 First and foremost, we know DOT does 25 certify woman owned businesses, so if a 0019 1 woman owned business has a DOT certification, 2 that's great, you don't have to go through any 3 other process as long as you're a U. S. citizen. 4 However, EPA will be certifying woman owned 5 businesses and minority owned businesses that do 6 not meet the SBA, DOT size standards. That's 7 another important thing; EPA does not have a 8 size standard. This is only for procurement 9 under EPA grants. This does not in any way apply 10 to direct procurement. That's a huge 11 distinction. A lot of people get confused with 12 that. This is only under procurements under EPA 13 grant. 14 We will be certifying disabled American 15 owned businesses. Private and voluntary 16 organizations controlled by individuals who are 17 socially and economically disadvantaged under 18 our 10% statute will be certified entities which 19 are certified under criteria which are 20 inconsistent with EPA's DBE program criteria, 8% 21 and 10% statutes. I'm going to explain that 22 because I know it's a little confusing. 23 Finally, any entity claiming that it's 24 owned or controlled by socially and economically 25 disadvantaged individuals under EPA's 8% 0020 1 statute. 2 I wish I was around when some of these 3 statutes were written. We have an inconsistency 4 in this particular part of our program. Under 5 our 8% statute, a business has to be owned or 6 controlled by a minority or woman. 7 Under our 10% statute, the business has 8 to be owned and controlled which is consistent 9 with SBA and DOT and everybody else. Well, 10 because we can't go back and rewrite the 11 statute, because statutes control us and it 12 works its way down from there, we have to have a 13 program that encompasses both. So that's why 14 our statutes are written to know that we are the 15 only ones that will certify an entity that is 16 owned or controlled by a minority or woman. So 17 that's why that's a separate category, and that 18 sort of applies to the d. and e. part that's 19 under that particular section. It's worded a 20 little tricky, but that's the explanation for 21 it. 22 Questions? None. 23 Okay, who can name for me at least two 24 entities that EPA will be certifying as a matter 25 of first impression. 0021 1 ( Audience answer inaudible.) 2 MS. BROWN: She said it first. 3 MS. PATRICK: She said it first. Well, 4 that really wasn't the right answer. Let me 5 restate the question. The question was name two 6 entities that EPA will be certifying as a matter 7 of first impression, two entities that only EPA 8 will be certifying. 9 ( Audience answer inaudible.) 10 MS. PATRICK: No, you got one half. 11 AUDIENCE: Disabled American owned 12 businesses. 13 MS. PATRICK: And give me one more. 14 AUDIENCE: Woman owned businesses. 15 MS. PATRICK: There you go. Do you 16 already have a duck? 17 AUDIENCE: No, I don't. 18 MS. PATRICK: Okay. 19 Okay, another part of the certification 20 requirement is that we're going with a $ 750,000 21 net worth standard, which means if your net 22 worth is less than $ 750,000, excluding your 23 personal residence and your personal interest in 24 the business, then you are eligible to be 25 certified under our program. 0022 1 AUDIENCE: Didn't it used to be 250? 2 MS. PATRICK: Actually, 250 is the 8( a) 3 Program which is the initial eligibility for 4 them and so we dropped out the lower ceiling and 5 we're going with just the higher ceiling that 6 they use for 8( a). It's also consistent with 7 DOT's program as well. 8 Okay, the next thing is the good faith 9 efforts, which Jeanette has already talked about 10 to some degree. 11 The good faith efforts are a part of 12 the terms and conditions of every single grant 13 that goes out from EPA. If you are a grant 14 recipient, this portion is extremely important 15 to you. If you are a business owner it's 16 important to you as well because you can also 17 push back from the other end and say well, hey, 18 you know, I know you have these requirements, 19 have you met them? Have you gone out and done 20 what you're supposed to do to look for me? If 21 you find out something is happening with a 22 contract, with a grant, you can ask those kind 23 of questions when you are empowered and you know 24 what the responsibilities are. 25 But if you're a grant recipient, it's 0023 1 very important to know that because our program 2 is outreach, we don't have quotas. We can't 3 make people do things, but we can make you at 4 least look. We can't say you have to go with a 5 certain number of minority, woman owned 6 businesses, but we can say you need to make the 7 effort to see if they're out there, include them 8 in the process. 9 The six affirmative steps, the six good 10 faith efforts is another area where EPA is 11 trying to be consistent. In one statute we were 12 calling it the six affirmative steps, in another 13 statute we were calling it good faith efforts 14 but they were the same thing. So we combined 15 them and we gave them one lovely name, which 16 will be the good faith efforts. 17 There are basically six different 18 things that a grant recipient has to do if they 19 decide to go out and contract in one of those 20 four areas that Jeanette mentioned. 21 They have to do things such as make 22 sure that the procurement opportunities are well 23 solicited; make sure that minority and women are 24 actually included in that part of the process, 25 that they at least try to find what's out there 0024 1 and available to them and make sure that it's 2 really well publicized. 3 I'm not going to go through all six of 4 them because I don't know them, but they're 5 there, and each of them are geared toward making 6 sure that minorities and women are included in 7 the procurement process under EPA grants. 8 DAWN BENTLEY: Dawn Bentley from 9 Thomas, Dean & Hoskins in Great Falls. When you 10 do see a violation, you know, there are certain 11 regulations when someone is going out for 12 certification after they've gotten the grant, 13 who do you turn to? Where do you report this 14 to, especially here in Montana and you see a 15 gross violation of grant regulations? 16 MS. PATRICK: If you see a gross 17 violation of EPA's grant regulations, and you 18 know you're dealing with an EPA grant, you need 19 to report that to the Grants Administration 20 Division of EPA. In your regions, you need to 21 figure out who your regional people are in terms 22 of dealing with the grant program there, and you 23 can report it there. 24 MS. BROWN: You can also forward it to 25 Maurice Valasquez, and if need be, send it to us 0025 1 in Washington, D. C. 2 MS. PATRICK: But that's only if it's 3 dealing with MBE/ WBE If it's another type of 4 grant violation, it needs to go to GAD because 5 we wouldn't get into that, but if it's dealing 6 with our program and the terms and conditions 7 regarding MBE/ WBE or soon to be DBE, then 8 definitely write Maurice and I. 9 Any other questions before I move on? 10 VERNON JONES: I'm Vernon Jones with 11 the Red Lake Builders, Red Lake Band of Chippewa 12 Indians. The good faith efforts have always 13 been through MINN DOT or any Department of 14 Transportation a bit ambiguous and subject to 15 interpretation. Now, if there are six rules for 16 good faith efforts, shouldn't everybody know 17 them? Shouldn't they be posted? 18 MS. PATRICK: They are posted. Those 19 good faith efforts in every grant agreement that 20 a recipient gets, they're in there, one through 21 six. They are consistent, they have not 22 changed. And so every grant recipient is made 23 very much aware of what those six good faith 24 efforts are. 25 Now, the way that happens, because we 0026 1 know that there's not a lot we can do in terms 2 of forcing many things, the grant recipient is 3 required to document those six good faith 4 efforts, and so if we do a review of their file 5 and we look to see that they have not done what 6 they're supposed to do in terms of good faith 7 efforts, then EPA does have recourse, because 8 they're supposed to do that. They are terms and 9 conditions just like any other terms and 10 conditions of a grant and they are in there. 11 If you turn to page, if you have the 12 actual full text of the  you don't have it? 13 MS. BROWN: I'll get you one. 14 MS. PATRICK: If you'll turn to Page 15 43848, where it says subpart C  Good Faith 16 Efforts, they're listed there. 17 And these good faith efforts are not 18 unique to EPA, DOT also has the same six good 19 faith efforts that they have to follow. 20 Any other questions, comments? 21 ( No response.) 22 Okay, the next part that constitutes a 23 pretty good change we think with the rule are 24 the contract administration provisions. These 25 are provisions that were drawn up in direct 0027 1 response to flyers we put out from MBE/ WBE 2 subcontractors, and things like not being paid 3 or being dropped as soon as the contract was 4 given. And so these things are instituted in an 5 effort to cut down on that. 6 The first one is that a recipient must 7 be notified in writing by its prime contractor 8 prior to any termination of a DBE subcontractor. 9 The second one is that when a DBE 10 subcontractor fails to complete its work under 11 the subcontract for any reason, the recipient 12 must require the prime contractor to make good 13 faith efforts in hiring another subcontractor. 14 The third one, a recipient must require 15 its prime contractor to make good faith efforts 16 even if the fair share objectives are met. 17 That's actually skipping ahead a bit, because I 18 haven't gotten to the fair share objectives. 19 When Jeanette first started talking, 20 she mentioned something about negotiating goals. 21 Each grant agreement has goals in it. The 22 goals are either taken from a goal that's been 23 negotiated between us and the state or the 24 municipality, or the recipient has the option of 25 negotiating its own goal directly with us if 0028 1 they don't want to use the state goal. 2 Those goals are based on availability 3 analysis or to disparity studies, which Jeanette 4 talked about. 5 This particular provision says that  6 well, a lot of times we'll have recipients say, 7 well, I've met my goal so I can stop all my DBE 8 efforts, I've already met my little, you know, 9 25%, if that's what it is, I don't have to keep 10 doing this. I can just go ahead and use the 11 rest of my grant money and spend it as I please 12 and go with the big contractors and that's it. 13 This provision makes it very clear, even if your 14 goals are met, those six efforts don't go away. 15 Any time you go out and procure in those four 16 areas, these efforts kick in regardless of 17 whether you met your goal or not. So this makes 18 that part very, very clear. 19 Next, a recipient must require its 20 prime contractor to pay its subcontractor for 21 satisfactory performance within a specific 22 number of days from the prime contractor's 23 receipt of payment from the recipient. 24 One of the comments we've gotten since 25 we started this process was that maybe they 0029 1 wanted us to put in a specific number of days 2 into that particular part of the regulation, and 3 that's something that we're considering. 4 But we definitely want to have 5 something that says that a number of days must 6 be identified in the actual agreement, the 7 subcontract agreement as to payment because we 8 want to avoid all those problems of 9 subcontractors not being paid. 10 Next, a recipient must require the 11 completion of a few new forms to prevent bait 12 and switch tactics at the subcontract level by 13 prime contractors which could circumvent the 14 spirit of the DBE program. 15 We're all very much familiar with the 16 bait and switch and how that happens. The forms 17 are currently under review by OMB, and they will 18 be out and available for people to view once OMB 19 has finished whatever its lovely process is, 20 which usually takes about forever. And those 21 forms are basically documentation of the process 22 that the prime contractor used to get the 23 subcontractor, different specifics about the 24 subcontract and those types of things so that 25 the recipient is very much aware of the types of 0030 1 agreements that the prime with the sub. So it's 2 not a little secret kind of thing and then they 3 drop you after the process. 4 DARRELL OLSON: This is Darrell Olson 5 with Timberline Resources. I took part in part 6 of the early planning of this and that was one 7 of the issues that we've seen in the past. 8 What teeth is there in this that's going to say, 9 yeah, we fill out this form, but if there's no 10 repercussions then there's no teeth in this. Is 11 that prime contractor subject to lose his 12 contract, or is it just another thing written on 13 paper that isn't going to mean anything, that 14 they're going to be able to get away with? 15 MS. PATRICK: The actual teeth in it is 16 a very good question because a lot of what we do 17 have in this program because of all of our 18 restrictions, has left us practically toothless 19 in many ways. But to the extent that these 20 forms allow us to be aware of what's going on, 21 it's a little bit different when EPA comes and 22 ask a question than it is when the grant 23 recipient asks a question of a prime contractor. 24 There's just a little bit more weight to it, 25 and so we know what's going on at that level and 0031 1 we can go out and say, hey, we've become aware 2 of the fact that you have this agreement with 3 this person and you're dropping them or you're 4 not fulfilling that agreement, it has a little 5 bit more weight to it with the prime contractor 6 than it would from any other source. 7 So to that extent for the first time, 8 we would be made directly aware of it. It's 9 important to us, because before these things 10 were happening and there was no documentation. 11 We had no idea what the subcontract agreements 12 were. We knew nothing, so we were powerless to 13 help even if we did hear about it, because by 14 the time we heard about it, it was well after 15 the fact. So it's not quite, you know, the 16 locked jaws of a Rottweiler but it's a little 17 bit more of a bite than we had before. 18 Any other questions? 19 ( No response.) 20 The next part is submission of fair 21 share goals. With this part, the rule would 22 require a recipient to submit its proposed fair 23 share objectives and supporting documentation to 24 the agency no later than 90 days after its 25 acceptance of the assistance award. 0032 1 This particular provision is new. The 2 teeth that's behind that is that a recipient 3 would not be able to spend any of its grant or 4 financial assistance award for procurement until 5 the fair share objective negotiation process has 6 been completed. 7 That's something that's very different 8 for us, particularly between EPA and a 9 recipient. Heretofore, recipients would drag 10 their feet about negotiating the goals for using 11 MBEs and WBEs. Now, it's very different. Once 12 that grant award is made, they have 90 days to 13 negotiate a goal with us. If they don't do it, 14 they can't spend anything in those four areas, 15 construction, equipment, services and supplies. 16 When you look at those four areas, you can't buy 17 anything. That covers everything. You can 18 still use it to pay salaries, which is fine 19 anyway, but anything outside of that, it's cut 20 off until you have a goal with us. 21 PAUL ARNETTE: That creates another 22 question. I'm Paul Arnette from Native American 23 Consulting. If you do have a company, a prime 24 contractor who has been identified as one that's 25 using bait and switch tactics, how quickly does 0033 1 the agency respond back and is there a process 2 whereby if that individual is identified as 3 using that, are they blacklisted by future 4 projects? 5 MS. PATRICK: Okay, that particular 6 portion of it in terms of documenting of prime 7 contractor who has a habit of bait and 8 switching, we have to be  this is the legal 9 part of me getting switched on  we have to be 10 very, very careful with that. 11 I used to work in debarment, and one of 12 the questions that would always come up was 13 well, if we sort of had wind that this company 14 has done some bad stuff, but we hadn't taken 15 full debarment action, can we just still stop 16 them because, you know, from the Better Business 17 Bureau we know they're a bad company. 18 The problem is this little thing called 19 due process and that little thing everybody is 20 entitled to. We can't stop a company from being 21 involved in the process when there's been no 22 hard core proof, they haven't had the 23 opportunity to defend themselves as such. 24 So we can't say, well, you can't 25 participate anymore because we heard you were a 0034 1 bad company. Granted, there's some room there 2 because it is a business decision, but with this 3 particular program that's a business decision at 4 the recipient level. Who the recipient chooses 5 to contract with is something EPA cannot 6 dictate. 7 So if the bait and switch type of thing 8 occurs, your first recourse is to follow 9 whatever the processes are at the recipient 10 level, whether it be the state, or whoever it is 11 that handles it, follow their procedures first, 12 but it's really not a Federal Government 13 contract. 14 What you do is you follow those 15 procedures and you let us know along the way. 16 Because while we can't really be involved in the 17 process, we're perfectly entitled to ask 18 questions because it's still our monies. 19 Do you understand what I'm saying? So 20 it's a very delicate little balance there. 21 DARRELL OLSON: Darrell Olson with 22 Timberline. I guess since this is a hearing on 23 something that I'd like to see, is when I asked 24 you the first time you said that EPA coming 25 down, putting a little bit of pressure on them 0035 1 is going to change this. 2 The way I see it with the blacklist 3 idea, I think there needs to be a list, and I 4 would really like to see if EPA, it comes to 5 your attention, you actually talk to that 6 contractor, that's the process of due process. 7 If you fill out these forms and you're 8 never, ever going to have an appeal process or 9 there's never going to be what I'm saying is, 10 if you go through a process and say somebody 11 reports them, you come down, you talk to them, 12 and you check up on them and all of a sudden you 13 find that yeah, they are in violation, then at 14 that point they had their chance to do their due 15 process and those contractors should be listed 16 with all the grant recipients as a 17 non compliant. 18 If you're not willing to, if your 19 office is not willing to actually follow up on a 20 complaint, then the whole program is moot 21 anyway. I mean you need to have some sort of, 22 at least a list, you know, put together and make 23 the due process the complaint process. 24 MS. PATRICK: Well, the problem with 25 that is this, we're requiring that the recipient 0036 1 have their prime contractor fill out the forms. 2 The forms regarding their subcontracting 3 activity, and so forth, is the responsibility of 4 the recipient. Let's say in this scenario it's 5 the state, state of Montana. They're going to 6 require their contractor know what the 7 subcontract activities are. EPA, in turn, as a 8 part of what's in the entire grant file, which 9 is what this will become a part of, has the 10 opportunity to look and see what's going on. 11 Now, let's say there's some bait and 12 switch going on, okay. The recipient through 13 these forms becomes aware of it. The recipient 14 does nothing. Let's say the next year the 15 recipient gets more money from EPA. The 16 recipient chooses to go with the same contractor 17 who did the bait and switch. 18 Let's say year three, EPA does a random 19 review. We happen to pick the state of Montana, 20 here we come. We look at this, we look at the 21 forms. We see the state of Montana has 22 continued to use this contractor who is 23 continually done interesting things with its 24 sub. Our direct recourse is going to be with 25 the state of Montana in this scenario, with the 0037 1 recipient, because it's the recipient's 2 responsibility to sort of monitor what's going 3 on at that level. 4 EPA cannot create and maintain lists of 5 bad actors when it's not our direct contract. 6 In our direct side of the house where EPA is the 7 one who is directly involved in the contracting, 8 we can look at things like past performance 9 because it's a direct EPA contract. 10 On the other hand, the whole nature of 11 doing a grant is that it's money that the agency 12 gives out for the recipient to do projects that 13 are for the recipient's benefit. They're not 14 benefitting EPA. So it's like we give the 15 money, we want to know what you're doing with 16 the money and make sure you're doing what you 17 said you would do, but we can't dictate how, in 18 many ways we can't dictate how that happened. 19 On the direct contracting side, that's 20 our money. We're not funneling it through 21 anybody. It's going to be directly affecting 22 the agency, and so if we want to look at things 23 like past performance. We can do that and keep 24 a record of it and that type of thing, but we 25 have to be very, very, very careful that we 0038 1 don't end up debarring someone without due 2 process. 3 Due process means the bad actor, the 4 accused bad actor has the opportunity to come 5 in, state its case, this is what I've done in 6 response to what you're saying I did. There's 7 usually somebody like a hearing officer 8 involved, administrative law judge, that type of 9 thing. It's a whole different kind of ball game 10 when we talk about that sort of due process. So 11 in large part, that portion of it is going to be 12 the responsibility of the recipient. 13 MS. BROWN: Can I say something? 14 She's a former debarment attorney, so it's good 15 to have her on my side in the program. But the 16 other thing I think we've done with the forms, 17 don't we have a form that the subcontractor can 18 send in to us? Did we identify one of those? 19 MS. PATRICK: Most of those forms  20 MS. BROWN: There's one, if I recall 21 correctly, that I felt we had identified where 22 the subcontractor can send information in to say 23 what the contract was actually for. 24 MS. PATRICK: You're right, there is 25 one. 0039 1 MS. BROWN: So there is a mechanism. 2 Because before we didn't have that, but now you 3 as a subcontractor have the opportunity to say 4 this is the amount that I entered into the 5 contract for and this is what I got or didn't 6 get, and we get that as well. And so they are 7 supposed to give those to both the prime and you 8 as a subcontractor and then you fill that in and 9 send it back to us so we will know and begin to 10 see what's going on and that's more than what we 11 have now. And we see that as a mechanism to go 12 back to the grant recipient to say, hey, these 13 are the kinds of things you need to watch and 14 what's going on, and maybe some other things too 15 later on. 16 MS. PATRICK: Question? 17 ORIANNE BAKER: My name is Orianne 18 Baker. I'm the business manager for the 19 Chippewa Cree Tribe in Rocky Boy, Montana. 20 One of the things that just occurred to 21 me, an idea while we was talking about this 22 issue. Although EPA isn't able to like 23 establish a list or some type of directory of 24 prime contractors that do this type of practice, 25 there is nothing to say, is it correct in my 0040 1 thinking, there is nothing to say that as tribes 2 and tribal business owners on our part to 3 establish that directory? Therefore, we're not 4 getting sucked in to deals by the same 5 contractor. Because what occurs to me, I'm sure 6 they use up one tribe, then while they get their 7 next contract, then move to the next one. 8 MS. PATRICK: You are perfectly welcome 9 to do that because on that particular level 10 you're not held to all the legal standards we 11 are. What you do, it's considered more of a 12 good business decision, because it doesn't make 13 good business sense to continue to do business 14 with a bad contractor. We all know that. But 15 at your level you can do that, and if you want 16 to even share that with other tribes, say, hey, 17 these are our bad actors, spread it around, what 18 you do internally, that's just a good share of 19 information. That's perfectly fine. But if the 20 government does it, then we're in trouble 21 because that's sort of like, you know, it arises 22 to a debarment when we do that. We can't do it. 23 ORIANNE BAKER: And I believe here in 24 Montana they have an organization called Montana 25 Tribal Business Development and see there would 0041 1 be a vehicle in that organization where we could 2 list those companies. Because, you know, with 3 tribal business their revenues and what they 4 identify as revenues and market are very  you 5 really count on it. You see it as a way, well, 6 here's some for sure money we could kind of bank 7 on this on the growth of our company. But when 8 that doesn't turn out, I mean, I see that as 9 really leading to business failure. And that's 10 really too bad because actually we can't, you 11 know, it would be good not to be involved with 12 those types of companies. 13 MS. BROWN: It is our hope that as we 14 are having these meetings, we're asking that the 15 small business community, the minority, 16 woman owned and even the tribal business 17 community will band together, come together, and 18 as you are seeing certain practices, certain 19 things happen, you can share that amongst 20 yourselves. 21 We're even hopeful that some of the 22 larger tribes will work and share information 23 with some of the smaller tribes. That's my hope 24 in all of this, so that information will be 25 passed along so that they don't get burnt and 0042 1 spend unnecessary money and not maybe get what 2 they thought that they were paying for. 3 We hear that a lot, across the board in 4 the minority business community sector, and so 5 we're hoping that there will be this gathering 6 of information and sharing it across the board. 7 MS. PATRICK: Okay, any other questions 8 or comments? 9 ( No response.) 10 Once the fair share goal is negotiated, 11 it's good for three fiscal years. Now, the 12 other way that will be different is that if 13 there's significant changes that occur during 14 that time period, rendering whatever data the 15 goal was based on obsolete or irrelevant, the 16 recipient will have to renegotiate goals with 17 EPA. But basically the goals are in place for a 18 three year period. 19 We're going to talk about the fact that 20 the goals are based upon availability analysis, 21 given geographic areas. 22 One thing that's important to point out 23 is that for the very first time in this rule, 24 we're going to be requiring tribes to negotiate 25 goals with EPA. We know this has not been done 0043 1 in the past, but one of the things that came out 2 in our review was that normally EPA's account, 3 all the great money given to tribes was 100% 4 MBE/ WBEs. Well, when the OJ did its review of 5 our program, one of the things that was revealed 6 was that a lot of times tribes would get grants 7 but that money wasn't going to MBE/ WBE, they 8 were spending it with large majority 9 contractors. 10 So when we reported back to Congress, 11 which is one of the things we had to do on our 12 program, we would say oh, 100% of this was 13 MBE/ WBE, but we found out that wasn't true. It 14 wasn't happening. So we decided one of the 15 things we would have to do is require the tribes 16 to negotiate 17 MS. BROWN: And that wasn't the intent. 18 We didn't know that was happening at all. 19 MS. PATRICK: And so one thing we 20 decided to do was have the tribes negotiate 21 goals with us just like the states do. The 22 tribes have options. We want to make that very 23 clear, there are options, you don't have to do 24 this. 25 Because we know the cost of doing an 0044 1 availability analysis can be steep and the cost 2 for doing the disparity study even steeper, the 3 tribe has the option, only an option, not a 4 requirement, of adopting the state goal. 5 If the state goal works for you, and 6 you and the state purchase from the same basic 7 geographic areas, or they can adopt the goal 8 that a municipality uses if it's in the same 9 geographic area and the buying sources are about 10 similar, they can adopt those goals, or they can 11 adopt the goal of another tribe that's in the 12 same geographic area. These are all options 13 just to make it a little bit easier. 14 One of the things that's also possible, 15 not a definite, but it's possible that the cost 16 of the availability analysis may be something 17 that could be covered under the grant, possible. 18 But you'd have to check with your individual 19 grant agreement, check with your grants people 20 to see if a part of that cost, if not all of it, 21 can be assumed under the grant. 22 DARRELL OLSON: I don't mean to hog 23 your mike. Darrell Olson with Timberline 24 Resources. Dave Sutton helped us here recently, 25 or a couple of years ago. We were working with 0045 1 a tribe that had an EPA grant for a Brownsfield, 2 and at that time the company I was working with 3 was an 8( a) company and we wanted to contract 4 under the 8( a) Program and your program people 5 said no, we can't. There's no follow through in 6 the grant process to use government mechanisms. 7 Does this new grant procedure allow for 8 8( a) and other minority or disadvantaged 9 business contracting procedures follow through 10 with this, or those contracting procedures are 11 no longer when you issue the grant to a tribe? 12 MS. BROWN: 8( a) is with direct 13 procurement on that side of the house. That 14 goes under the FAR and 13 CFR and it's for the 15 Federal Government's direct procurement 16 process. When you're talking about grant and 17 subcontracting, the only thing we are concerned 18 with is whether or not it's a minority 19 business. What that definition is as we've 20 gotten it from SBA, a woman owned business and 21 the prime contractor being able to get credit 22 for or recognizing that they are doing business 23 with minority, women businesses to meet their 24 requirement under the grant. So we don't look 25 at 8( a) under the grant. We don't look at 8( a), 0046 1 your minority business, it's all inclusive. 2 Did I answer your question? 3 DARRELL OLSON: Yeah, you did. 4 MS. BROWN: One of the things as we've 5 gone through this process and it's been about 6 four years, when we looked at the fact that we 7 need to include tribes in the negotiations, what 8 the tribes need to understand is this money 9 doesn't come free. And that's not just the 10 tribes, that's anybody that gets it. There are 11 regulations that go with it and you can't just 12 say just give me the money and walk away. 13 If there is a challenge to how you 14 procure it, you then, and that's anybody being a 15 grant recipient would have to defend what you 16 did. We can't defend that. What was your 17 process? How did you document your files? Do 18 you have any kind of standards that you follow? 19 If there's a challenge and we could foresee 20 another minority group or majority group 21 challenging some of the things that were being 22 done under the program the way we were carrying 23 it out before. Because it was almost like 24 anything went and we weren't in there in the mix 25 and we just didn't see it or didn't do anything 0047 1 about it. That's got to change. 2 So what we did was, we did a run in the 3 agency to see how many grants we had with 4 tribes. We had a very high concentration, a 5 large number of grants on the west coast, 6 particularly in Region 10, but when and Kimberly 7 would talk about some of the exemptions that we 8 have identified, and by the time  how many 9 tribes did we identify? We know there were 10 about 600 plus. When we did the numbers with 11 the exceptions, we are probably looking at a 12 total of about 25 to 30 at the most of the 13 larger tribes that will have to negotiate. 14 That's all. The smaller tribes with the 15 exemptions or the types of grants that they have 16 from us, won't have to negotiate. 17 The only thing that we are exempting, 18 depending on the exemptions as we've identified, 19 EPA is proposing to exempt recipients of an EPA 20 financial assistance agreement in the amount of 21 $ 250,000 or less or any single assistance 22 agreement with a combined total of $ 250,000 or 23 less in any one fiscal year. The total is 24 $ 250,000, total, either one, or over the course 25 of one fiscal year, no more than 250,000. 0048 1 So if you get less than 250,000, you 2 are exempt from negotiations. You're not exempt 3 from the good faith efforts, nobody is exempt 4 from the good faith efforts. It's only the 5 negotiations. 6 Under the clean water and the drinking 7 water, the SRF Brownfields Cleanup program, the 8 revolving loan fund, we have exemptions there 9 too. We are proposing that a recipient not be 10 required to apply the fair share objective 11 requirements to an entity receiving an 12 identified loan in the amount of $ 250,000 or 13 less or to an entity receiving more than 14 $ 250,000 or less in any one fiscal year. 15 Recipients of identified loan projects could use 16 state negotiated MBE/ WBE fair share goals if 17 they used a substantially similar relevant or 18 similar geographic market. 19 The key to all of this when using or 20 opting to use somebody else's goal is that you 21 have to have a similar condition. The 22 geographic market has to be similar, and that 23 has to be identified to the MBE/ WBE coordinator 24 who would be the person negotiating, so that's 25 Maurice for all of you for right now. He will 0049 1 be the one that will be negotiating the goals as 2 he does now with all of the grant recipients. 3 Did I hear a question? Yes, sir? 4 DAVE NELSON: My name is Dave Nelson, 5 environmental director for the Cheyenne River 6 Sioux Tribe. I'm a little bit confused on this 7 now. If a tribe wishes to conduct all the 8 contractual or construction activities, let's 9 say under Brownfields, for example, we're going 10 to do all the cleanup, we have the capabilities 11 to do the assessment, how do we have to come 12 back in because we've already signed the 424 and 13 MBE and WBE? That's kind of confusing to me 14 because we're already a tribal government, I 15 mean basically a government to government  16 MS. BROWN: What it is, before you get 17 your money, within 90 days of the award or the 18 financial assistance agreement, negotiations 19 have to be completed. So we do that up front 20 within 90 days of the financial assistance 21 agreement being awarded. And we negotiate that 22 based on the availability of minorities and 23 women in that geographic location and that's the 24 amount that's set and goes into your grant. 25 This covers not just construction, but 0050 1 it covers if you go out and buy a pen, if you go 2 out and buy paper, or if you go out and buy 3 supplies, equipment, construction, services or 4 supplies, then you may not be able to provide as 5 the tribal government  and I don't know, you 6 may  but you may not be able to provide 7 everything you might need under that grant. 8 While the core services for construction you 9 very well may be able to provide, those other 10 three categories you may get from someplace 11 else. 12 We would negotiate a goal with you as a 13 tribal government, possibly, provided you didn't 14 fall into the category with the exemptions and 15 you were one of those 25 to 30 tribes that we 16 have to negotiate with, we would negotiate with 17 you and that goal will be in your grant in terms 18 of what your commitment should be in terms of 19 trying to include minorities and women in your 20 procurement process. 21 Again, remember I said, you don't have 22 to contract out at all, that's your choice as a 23 grant recipient. If you have within your own 24 abilities to do the work on your own, use the 25 grant money to pay salaries for your staff, you 0051 1 have that option. But once you go out and buy 2 something and enter into a contract with 3 somebody else for services, goods, construction 4 or equipment under this grant, those goals that 5 we negotiated early on will kick in, our DBE 6 program kicks in. 7 DAVID NELSON: Now, you mentioned the 8 250,000, is that per line item? 9 MS. BROWN: No. 10 DAVE NELSON: For the overall grant. 11 MS. BROWN: For the overall grant, or a 12 total of $ 250,000 for a fiscal year for more 13 than one grant. 14 DAVE NELSON: So if we have a grant 15 that's 400,000 and maybe 50,000 of that is for 16 construction, supplies, equipment, whatever  17 MS. BROWN: We're not going into the 18 details of the grant because that's too much. 19 If your grant amount if $ 450,000, you have to 20 negotiate if you don't fit the exemptions. 21 We're going by the grant amount not the 22 procurement dollars within the grant. It's too 23 complicated. 24 DAVE NELSON: Yeah, because I'm 25 thinking back on what they were talking about 0052 1 under CFR 13, I mean it spells out in there, you 2 know, tribes have this, you know  3 MS. BROWN: But that's a different, 4 that's in direct procurement. 5 MS. PATRICK: Put 13 CFR out of your 6 head, none of that applies. 7 MS. BROWN: That doesn't apply here 8 now. We've got to be clear. Yesterday was 9 direct procurement and you had those exemptions 10 or you don't have any dollar limitations under 11 contracts directly under the FAR. 12 The grant process doesn't cover the 13 FAR, it's a whole different set of rules 14 separate and distinct. 15 Any other questions or comments? 16 DARRELL OLSON: Darrell Olson again. 17 How did you come up with the 250,000? And the 18 reason I ask that is a small business, 19 especially in our region, contracts under 20 250,000 are life blood of small business. And 21 by you putting a cap of 250,000, that excludes 22 probably the majority of the people in this room 23 as businesses don't usually do a lot of 24 contracts over 250,000. 25 So I guess what I'm asking, and not 0053 1 necessarily speaking on the tribal, like the 2 City of Billings, I know applied for a grant. I 3 would like to see, and I know it may be too late 4 in the process, that that lot number be lowered 5 to grants under, you know, somewhere around 6 50,000 because that's our life blood. 7 This whole program is about monies 8 under that, and I very seldom every see a 9 Brownfields, at least in our region, that's over 10 200,000. I think the initial assessment grants 11 are $ 200,000 so this minority program will never 12 kick in on the grants for the majority of the 13 small businesses. 14 MS. PATRICK: Well, the program does 15 kick in. The exemption only applies in 16 negotiation of a goal. So that means that the 17 entity would not operate with who was under that 18 amount, it wouldn't operate with their 25% goal; 19 however, they still have to go through those 20 steps regardless, goal, no goal. You still have 21 to go through the six affirmative steps to show 22 that you went out and sought minority 23 businesses, they were included in your 24 procurement process, they bid, they did X, Y and 25 Z, all of that has to be proven. They still 0054 1 have to report back to us in all those forms. 2 None of that goes away, only the goals. 3 MS. BROWN: It's only negotiating with 4 EPA goals. 5 MS. PATRICK: So that part that applies 6 to making sure that you all are in the process, 7 that never goes away. It's just the goal part, 8 which reduces the administrative burden on us as 9 well, because if we had to negotiate every 10 single grant, if we had a cap of $ 50,000, we 11 don't have the people. We just don't have the 12 people to go out and negotiate that heavily. We 13 have one regional coordinator in each region, 14 one person. And so for that one person having 15 to negotiate goals on every single, solitary, it 16 would be impossible. 17 What happens, if you talk about the 18 smaller grants or the smaller loan programs or 19 whatever that come out, usually there are 20 multiple awards during the year. That total 21 adds up, and trust me, about halfway, mid the 22 year, they've usually hit that $ 250,000 mark or 23 above. 24 So it may seem like little, small 25 projects coming out, and one thing you may not 0055 1 know, if the state of Montana puts out a bid for 2 a project, $ 50,000 for a project for a water 3 treatment thing, that $ 50,000 is not all the 4 money Montana got. Montana may be given a grant 5 for $ 500,000 but that procurement is only 50. 6 So you have to really look at the big picture 7 and find out what the total award was, not just 8 what's being procured and put out there because 9 sometimes they put it out in pieces in terms of 10 procurement. That's very important. 11 MS. BROWN: Any questions or comment? 12 That's our friend from DOT. 13 MS. PATRICK: That's our DOT person. 14 REBECCA JOHNSON: I'm Rebecca Johnson, 15 and I'm with Montana Department of 16 Transportation, DBE support services. 17 When you say the state of Montana, are 18 you talking about the grant recipient state of 19 Montana and their goal? 20 MS. BROWN: Yes. 21 MS. PATRICK: That was just me giving 22 an example and I was talking about as a 23 recipient. 24 REBECCA JOHNSON: Okay. Well, you were 25 referring to that you could take on their goal, 0056 1 and you're talking more DEQ under the state of 2 Montana as the grant recipient. 3 MS. PATRICK: Exactly. 4 REBECCA JOHNSON: How, when they have 5 that goal that they have negotiated with you and 6 determined, how are they required to advertise 7 that goal so that we could see, you know, what 8 the goal is that they are trying to achieve and 9 how well they have done in achieving that goal? 10 I mean, that's good information for us to know. 11 MS. PATRICK: That's actually something 12 that's a good idea. We don't currently as an 13 agency require them to advertise what their goal 14 is as such, however, that information is public 15 knowledge. 16 There is a grants website, a grants 17 database where you can go to and you can 18 actually search and say you want to know all the 19 grants that were given in Montana. They'll 20 pull them up for you. And also, we keep the 21 goals on our website which is also available to 22 find out what the goal is for the state of 23 Montana or whatever. The goals are made public, 24 but we don't require the recipient at this point 25 to advertise its goals. 0057 1 MS. BROWN: Did DOT require the 2 recipient to identify that goal and publicize 3 it? 4 REBECCA JOHNSON: Well, we're actually 5 the recipient from the Federal Government and we 6 set a yearly goal which we widely publicize. 7 And we also show how we're achieving that goal 8 throughout the year. 9 MS. BROWN: Is that something you chose 10 to do yourself, or does the Federal Government 11 make you do that? 12 REBECCA JOHNSON: No, that's our 13 interpretation of the federal regulations, which 14 is another question I have. With your grant 15 recipients, then, their interpretation of good 16 faith efforts. So I don't know how formal they 17 are in what their, you know, interpretation is 18 and what their standards are for good faith 19 effort, because, I mean, that's a big part of my 20 job is promoting DBE companies in the state. 21 You know, I need to know where they are going 22 looking for DBE companies and what they're 23 requiring their contractors in showing good 24 faith effort. 25 MS. BROWN: One of the things that we 0058 1 try to do in this process is to make more 2 information available, and one of the things 3 that I'm asking each of the coordinators to do 4 within each one of their regions, is to help us 5 to expand information like that. On our website 6 we've asked the state and other grantees to send 7 us information in terms of listings or how we 8 can connect and do links to various websites 9 that would give information to the public in 10 terms of what it is that they're doing or where 11 to go within the state, or to a tribe, et 12 cetera, if they have anything available. 13 That has been slow in coming, but I'm 14 hoping that as we get through this process and 15 finalize it, one of the other things I would 16 like to do is to give more substantial 17 information, have that readily available to go 18 out with the grant when its awarded at EPA to 19 the grant recipient. 20 We're also working with the grants 21 office with the grant recipient and doing some 22 internal training with the program people to 23 make sure that they don't forget, as they are 24 more concerned about the technical stuff, that 25 they don't forget the administrative pieces as 0059 1 well and that they go through this to make sure 2 that a grant recipient understands early on in 3 the process what this means. 4 One of the areas where we're seeing a 5 lot of problems with this is when we have 6 earmarks, because a lot of times when they're 7 earmarked by the time the grant recipient, the 8 states know this money is coming because it's 9 been promised by their representative, by the 10 time we get it the money might be spent. 11 So one of the things we are discussing 12 internally now is how we can send out maybe some 13 communique to the Hill to make sure they 14 understand. We don't have a problem with the 15 earmarks, but your grant recipients need to know 16 that there are stipulations that come and 17 there's a fiduciary responsibility on our part 18 to ensure that all of these things are adhered 19 to. 20 So we're looking at a number of things 21 and trying to consider a number of things of 22 getting more information out there very early on 23 in the process. 24 But if you have a website, if we can 25 link so that when  we have a map on our 0060 1 website with all of our regions and its number. 2 It's colored, you can go on and click, and say 3 for the state of Montana, it would be good if 4 they could just click and find out where to go 5 with the tribal, minority business, all of that 6 information. That is my hope. We're not there 7 yet, but as technology advances and more and 8 more of this information is available, we become 9 aware, I'm hoping that we can build that so that 10 information is there. 11 Does that make sense? Does it help? 12 But it's a process, we're not there 13 yet, but that's the vision. 14 REBECCA JOHNSON: One final question I 15 have is, then you say like a grant recipient in 16 the state of Montana sets a goal with you, what 17 is the ramifications to the state if they do not 18 meet the goal? 19 MS. BROWN: There are a number of 20 things that we can do. We will question and 21 find out and look at the documentation and see 22 why. We will look at how that goal was 23 established and see if it needs to be 24 renegotiated and/ or changed. If we constantly 25 see that somebody has negotiated a goal at 10% 0061 1 and they come in at 2% over and over and over 2 again or less than that, or whatever, we can 3 take race neutral and race conscious efforts. 4 REBECCA JOHNSON: You cannot do race 5 conscious goals, those are project specific 6 goals and that's what we do in our program. 7 MS. BROWN: Race and gender conscious 8 efforts. 9 REBECCA JOHNSON: Right, and that's 10 where you're setting project specific goals. 11 MS. BROWN: Right. And so that's 12 something else that we'll begin to take a look 13 at. 14 REBECCA JOHNSON: So you're just using 15 race neutral? 16 MS. BROWN: Yes, right now. 17 REBECCA JOHNSON: Okay. 18 MS. BROWN: But we recognize that we do 19 have that as a possibility too if we see a 20 constant pattern. We can call them into 21 question and say what's going on? We will be 22 looking at this a lot, lot more. Before it was 23 8% in all the grants that we put out, just 8% 24 across the board. But after Adarand we know we 25 can't do that, and some are as high as 30% 0062 1 depending on what portions of the country we're 2 in. Some are as low as 2%. 3 REBECCA JOHNSON: So you can get the 4 information also of how well the state has done 5 in meeting their goal in the past, that 6 information is available? 7 MS. BROWN: We do a report to Congress 8 but because of how our grant program is run and 9 when, we may be under on some of these grants, 10 depending on the project, it may not be in the 11 same fiscal year and so they overlap, and so 12 it's kind of difficult. While we report, and 13 we're reporting to Congress what we thought was 14 the accomplishment when you really looked into 15 it, it may have been some grant money that came 16 two or three years ago, but we counted it in 17 that fiscal year. Do you see what I'm saying? 18 So to a certain extent, it's difficult to 19 identify. 20 Say if they have a major wastewater 21 treatment plant and the contracts don't come for 22 two years down the road but it was awarded in 23 this fiscal year, and they didn't do anything 24 this fiscal year in terms of contracting because 25 of the planning, is it fair to assess or say 0063 1 that they didn't meet that goal because they 2 didn't have any contracts that they were going 3 to award. And so we count it in the year that 4 it is actually being done, I guess, in my report 5 to Congress, and we need to take a look at that. 6 REBECCA JOHNSON: But at least it gives 7 you a snapshot idea of what's going on in our 8 state. 9 MS. BROWN: It does. It gives us an 10 idea of what's going, and the reports that we 11 get annually, or quarterly, depending on the 12 requirement in the grant, it gives us a picture 13 of what's going on and you can go back and flag 14 some things and we haven't been able to do that. 15 So from that perspective, yes, but I need to 16 be careful when we say for this fiscal year this 17 was it, because that may have been old money and 18 we may not have seen any contracting 19 opportunities for two or three years down the 20 road. 21 REBECCA JOHNSON: Okay, thank you. 22 MS. BROWN: Any other comments or 23 questions? 24 ( No reponse.) 25 MS. PATRICK: Okay, moving right along. 0064 1 The final exception is one that only 2 applies to tribes. That exemption is that 3 grants that are eligible to be included in a PPG 4 or grants that are TAG grants are exempted from 5 negotiation requirements for tribes only. 6 Now, one of the things we looked at 7 when we exempted PPG eligible grants was that 8 that will effectively exempt grants in 17 9 different grant categories. There are 17 types 10 of grants that are eligible to be rolled into 11 PPGs. Each one of those would be exempt. 12 So when we said we ran our numbers and 13 we used Region 10 as a test case because they 14 have a large number of tribes, close to 272, 15 something like that, once we backed out the 16 $ 250,00 requirement and then backed out the ones 17 with PPG eligible and TAG grants, we were left 18 with 25 that have to negotiate. That's an 19 effective exemption from our standpoint, going 20 from 272 negotiations to 25. That's huge. 21 Like I said before, our main focus is 22 to make sure that those six affirmative efforts 23 in things like reporting, that's the hard core 24 facts that we really want to make sure never 25 goes away. Negotiations we can give a little 0065 1 on, that's why we have the exemptions in there. 2 From an administrative standpoint, it just made 3 sense for us to do it. 4 Let's see, because we know that the 5 negotiations for tribes in insular areas and the 6 trust territories is something that is brand 7 new, and we know that it takes time to develop 8 availability analyses and disparity studies, we 9 have instituted a three year phase in period for 10 the tribes and trust territories in insular 11 areas. 12 This does not mean that we want the 13 tribes to wait until the last day of year three 14 to come forth and do the negotiations. It is 15 our hope that doing the three year phase in 16 period a number of things will occur. 17 First and foremost, tribes that have 18 systems in place and the capabilities to go 19 ahead and go forth and negotiate, we want you to 20 go ahead and do it so that you can be sort of 21 leaders in that particular area and be an 22 example of how this process can be good, and how 23 it can go smoothly. 24 The second thing we want to use that 25 time to educate, educate and educate. We want 0066 1 to go out and do some more training specifically 2 for the tribes, the grant recipients that are 3 tribal grant recipients to make sure they 4 understand the new things that are in place. 5 During that period, that's going to be our 6 charge, to make sure that the training is done, 7 that you understand what the processes are going 8 to be. And so that's the reason why we have a 9 three year phase in period. 10 Any questions about that? 11 ( No response.) 12 MS. BROWN: Now, there may be some 13 opportunities available with the young lady from 14 yesterday. We're working with the National 15 Center. If there are other organizations that 16 have some ideas in terms of how we can best do 17 this to get the training to the tribes, we will 18 be open to hear from you, to take a look at how 19 we can get this out there to the tribal 20 communities. 21 We don't have a set plan all together 22 yet, we're working on that, so now is the time 23 to come forward, to identify yourselves, to say 24 what your capabilities are so that we can see 25 who is out there and come up with how we want to 0067 1 go about this. 2 We have been very pleased with the 3 support and the effort that we've gotten from 4 the National Center, but we're also looking at 5 the possibility of splitting the country in half 6 and having one contract that happens on this 7 side and one contract on the other side. 8 Those are just some of the things that 9 I'm considering as the manager of the process, 10 to kind of spread the wealth around and also to 11 get more information in the hands of some other 12 organizations as well. 13 So if you know of some other 14 organizations, and we haven't even begun 15 discussions with the National Center about this, 16 but that's where I'm going. And I recognize 17 that there is a need, we want to put more 18 training out there, and so I'd just offer that 19 up. If you all know of organizations that we 20 can work with, please by all means have them 21 contact us and we can take a look at what's 22 available. 23 MS. PATRICK: Okay, we're heading 24 toward the home stretch now. 25 Last major section is on record keeping 0068 1 and reporting. For the first time EPA is going 2 to require that a recipient on a continuing 3 environmental program grant or other annual 4 grant be required to create and maintain a 5 bidder's list. Such a list must be only be kept 6 until the grant project period has expired and 7 the recipient is no longer receiving funding 8 under the grant. 9 In addition, a recipient of EPA 10 financial assistance agreement to capitalize a 11 revolving loan fund, better known as Brownfields 12 SRF Loan Program, must also require entities 13 receiving identified loans to create and 14 maintain a bidder's list if the loan recipient 15 is subject to, or chooses to following 16 competitive bidding requirements. 17 Finally, the purpose of the bidder's 18 list is to provide the recipient and entities 19 receiving identified loans who conduct 20 competitive bidding with as accurate of database 21 as possible about the universe of MBE/ WBE and 22 non MBE/ WBE prime and subcontractors. 23 Okay, this basically is a provision 24 that at the recipient level helps them to 25 create, like I say, a universe of what's 0069 1 available so that they can't keep coming back 2 and saying we don't know where they are. We 3 don't know where they are. Well, they bid on 4 your project the last time. If you maintain a 5 bidder's list, you'd know where they were. You 6 wouldn't have to keep going back and searching 7 sometimes because you already this list that 8 you've maintained of who has bid on your 9 contracts and who's available to do the work on 10 the second and third. And so that's really a 11 mechanism that's good for the recipient to have 12 as a resource that we hope will become a 13 database they can draw on, they can continually 14 add to. 15 Such a list must only be kept until the 16 project period for the identified loan has 17 ended. Recipients are required to comply with 18 these record keeping requirements even if they 19 are exempt from applying the fair share 20 negotiations, fair share objectives or goals. 21 That's very important. That's another 22 one of those provisions that does not go away 23 when we have exemption for the goals. When we 24 say those exemptions only apply to the goals, I 25 can't say this enough. We mean it's only the 0070 1 goals. Everything else about this program is in 2 place. You just won't be operating with a 3 certain percentage of a goal. 4 The next section is waivers, the OSDBU 5 director has the ability to grant waivers to any 6 requirements of Part 33, which is where this 7 rule will reside, that are not based on a 8 statute or Executive Order. That's just extra 9 language in there that gives our director the 10 opportunity to make waivers, it's not something 11 that's required by the statute. There's no such 12 rule in there for her. 13 Any questions on the rule thing before 14 I say what I was going to say next? 15 CLIFFORD COILER: ( Phonetic) Okay, I'm 16 Clifford Coiler and I'm here from Tacoma. I 17 have a question with this bidder's list, if a 18 prime contractor develops their list and that's 19 the only list they use, how do they generate 20 some new people on the list? 21 MS. PATRICK: Well, you add people to 22 your list because you continue your six good 23 faith efforts. Just because you have a list, 24 that doesn't mean that you stop there. The six 25 efforts are six different efforts to use to go 0071 1 out and find MBE/ WBE contractors, and so as you 2 continue to go through those six steps, every 3 single, solitary time you do a procurement, that 4 will help your list to grow with new people. 5 You still have to go out and continue to look 6 and do these things. 7 MS. BROWN: When we were in either 8 Albuquerque or Atlanta, I'm trying to remember 9 which one, a lot of questions came up on what we 10 consider a bidder's mailing list and how that 11 should be interpreted. Is it the people that 12 have bid before, or is it the people that are in 13 the area but they didn't bid, but I know they 14 exist from other listings, or is it only the 15 people that came in? I mean we had questions 16 all over the place. 17 We will be taking this back and looking 18 at that to expand it a little bit further in 19 terms of what it is that we're thinking, at 20 least define what we mean by bidder's mailing 21 list. And if you all have any comments or 22 questions, or things that you would like for us 23 to consider, by all means I need you to bring up 24 those as it relates to that. 25 REBECCA JOHNSON: Rebecca Johnson, 0072 1 Montana Department of Transportation. 2 Are you aware of, and I don't know how 3 much you are going to be looking at tapping into 4 the current system, like with DBE supportive 5 services, Indian preference TERO offices, you 6 know, that they create, we have our own 7 directories and it just seems like a very viable 8 starting point for your contractors requiring to 9 utilize these systems that are in place. 10 MS. PATRICK: When we have recipients 11 come in and ask, okay, well, I'm doing my six 12 steps, where do I go to look? Some of the 13 places you just mentioned are places we direct 14 them to. So we're saying if you want to go 15 look, here's a good place to start, check with 16 your TERO, check with your state DBE offices or 17 check with different SBA websites. Check 18 everywhere. There's a whole list of things we 19 tell them are sources they can go to to find 20 minority owned businesses and that's included in 21 part of that. 22 This bidder's list requirement, as I'm 23 envisioning it, and it's going to get a little 24 bit clearer as we go back through the process 25 and read all the comments on it, as I'm seeing 0073 1 it, it's a list of people who actually bid on 2 the contract. And there's a reason for that. 3 Well, this is my vision, only my vision, because 4 if we go to a list broader than that, it's not 5 really a bidder's list because you're not 6 including the people who bid. 7 If we want to call it a list of 8 resources, that's one thing, we need to change 9 the name of it. But if we call it a bidder's 10 list, we need to see people who actually bid on 11 that project. 12 MS. BROWN: And from a procurement 13 prospective I know a bidder's list is not just 14 the people that bid on it, but we have a 15 bidder's list that consisted of the people who 16 could possibly bid based on who we mailed it out 17 to. That's from my contracting background over 18 on the other side. I'm thinking it probably 19 needs to include the potential from possible 20 vendors that are out there that are capable or 21 able to bid. I think that way we will include 22 more minority or woman owned businesses not just 23 the ones who bid because then you need to go 24 into more in terms of what they did in actuality 25 to get these people to bid into the good old boy 0074 1 network and nobody else knows about it. 2 So those are some of the things that 3 are under discussion that we have to work out 4 with the finalization of the rule. But that's 5 where I'm thinking and that's where she's 6 thinking, and we will probably end up I'll say 7 somewhere in the middle. 8 REBECCA JOHNSON: Well, I'll just give 9 you an example because I'm trying to promote the 10 companies and so I'm always looking for the 11 opportunities and making them aware and so I'm 12 out there trying to encourage contractors to 13 contact me and use my office. 14 The Federal Highway Administration, 15 Western Federal Lands Administration just put in 16 their bid documents. I have an online request 17 form that contractors can use to get the 18 information to my office which I then send out 19 to the TERO, TBIC offices as well as all the DBE 20 companies of this contract opportunity, because 21 you need that and you need it in a very quick 22 response time because some of these project when 23 they're advertised, they're given a week to get 24 their subcontract quote to the primes. 25 MS. BROWN: Just not enough time to 0075 1 turn around and quote. 2 REBECCA JOHNSON: Right. And so you 3 need to get more of that where the contractors 4 are coming to these offices and resources and 5 utilizing them to get that information out as 6 well. 7 MS. BROWN: Right. And that's why we 8 are looking at putting some of those systems in 9 place, and even if we know that there's a 10 potential of contracting, I'm not saying that 11 they have to do it, but when we see from these 12 larger grants and maybe guesstimate where they 13 may be doing some of the contracting, give them 14 this information with the grant package early 15 on. 16 REBECCA JOHNSON: Yeah, and I've found 17 it's more effective like when it comes from that 18 grant recipient and they're putting it in their 19 bid documents, you know, use this online request 20 form to get the request out to the companies, 21 contractors are more likely to utilize those 22 systems. 23 MS. PATRICK: I think I'm going to get 24 a little excited, if I'm correct some students 25 are here. I feel the presence of students, I 0076 1 can feel it. I'm feeling like there's students 2 in this area. That's what I'm feeling. I feel 3 like whatever student wants to get up and say 4 what school they're from, they have a little 5 surprise in that box. Do I have any takers from 6 a student who would like to say what school 7 they're from? 8 NOEL TWO LEGGINS: Good morning. My 9 name is Noel Two Leggins, I'm student vice 10 president from Little Big Horn College, and I'm 11 here with my fellow classmates, and we're here 12 to learn some new things and spend a little bit 13 of time here. Thank you. 14 ( Applause.) 15 MS. BROWN: When we were here last 16 year, we had students visit us and we thought it 17 would be good to invite them again so that they 18 could see public policy  are you all business 19 majors? That's even more important. I was a 20 business major a long time ago. But so that 21 they could see public policy in the making. 22 Also one of the things that we 23 suggested the last time, as many of you are 24 minority contractors and real busy and you're 25 limited on your resources, well, students, I 0077 1 hate to say it, but they can be cheap in cost in 2 terms of working, but they could be very 3 beneficial to you in searching the web, finding 4 information on the Internet, getting in contact 5 with folk. 6 So we're hoping that as the minority 7 business community comes together, we're 8 inclusive of the future of this country when we 9 look at the up and rising stars in our colleges 10 and universities in particular, the students 11 from Little Big Horn College. So I would ask 12 that all of you think about that, because they 13 have a lot of energy. 14 I have a son that is about to enter 15 college, hopefully in August. We're doing 16 college applications and all of that good stuff 17 right now, and as soon as he can make up his 18 mind where he's going to go, but they have a lot 19 of good ideas and they have a lot of energy, and 20 that's something we don't always possess after 21 you've worked as long as you have and you have 22 all of these other things to do. 23 So we are thankful that you would come 24 and we're hoping that you will also network with 25 these business owners to find out more about the 0078 1 types of business that they are in and you can 2 talk to us about the public policy formation 3 that we're talking about. We'll give you some 4 handouts. 5 And again, I'd like to welcome you and 6 thank you for coming. 7 DARRELL OLSON: I'll make this my last 8 comment as an overall and encompassing. I've 9 heard a lot of good vision out of you, and since 10 this is a final rule making process you're going 11 through, I've heard a lot of chatter back and 12 forth between you all, we've got to figure this 13 out, we've got to figure that out, we've got to 14 add this, we've got to add that. 15 By those comments, it makes me fearful 16 that a lot of your ideas aren't written down and 17 your vision for the program when it hits the 18 Contracting Officer or the grant recipient, your 19 vision may not really be there. Is there going 20 to be modifications to this prior to it becoming 21 final, and is there going to be a public review 22 process, because it sounds like you've still got 23 some holes that need to be finalized before it 24 actually is ready to go final. 25 MS. PATRICK: I'll take a stab at that 0079 1 one. This is a proposed rule, okay? Proposed 2 meaning we're putting this out there to the 3 public officially for the first time to get 4 comments. This is the time where not only are 5 we looking  a lot of things that we're going 6 back and forth about are things we didn't think 7 of when we first wrote this. These are things 8 that are coming out of our, at this point, five 9 months, four or five month process of being on 10 the road hearing new things and new ideas and 11 things we hadn't thought about. That's why 12 we're out here now. This is the time when we 13 get the comments back. 14 We are required, and I mean required, 15 to go through every comment we receive. We are 16 required to consider those comments and we also 17 have to write back to OMB our disposition on 18 them. This is the comment, this is our response 19 to it, this is the outcome. 20 So this is not, this is really, really 21 close to being a final document, but it's not 22 concrete yet. Now what you see in here are 23 concepts that we will have in the final product 24 of the rule. Some of the things we're going 25 back and forth about are exactly logistics, how 0080 1 are we going to do it, but what's going to be 2 done is here. So it's the little things we're 3 going back and forth on, like we're never going 4 have a bidder's list. We just need to know what 5 information we're going to require on it, those 6 types of things. 7 DARRELL OLSON: But that needs to be 8 written down. 9 MS. PATRICK: It will be. When this 10 thing hits, comes out again as a final rule, 11 trust me, it will be written down. It will be 12 clear. Now, it's the contracting people, our 13 grant people, whoever this rule applies to, our 14 job is to make sure through this process when 15 someone gets this rule, it's a clear 16 understanding of what it is we want. 17 MS. BROWN: For example, on the 18 bidder's mailing list, I thought if you said 19 bidder's mailing list everybody understood what 20 we meant. And that's coming from my 1102 21 contracts background, but when we had meetings 22 around the country, we got all these questions 23 about well, what exactly do you mean? Is it 24 before or after or does it include? So that's 25 why we're having these discussions. 0081 1 Then I thought, oh, yeah, I understand 2 where people were coming from, so that we just 3 need to go back and define or refine that a 4 little bit more. 5 But we will have language about the 6 bidder's mailing list as it's presented but we 7 might go into some refinement to explain in more 8 detail what we mean by that so we're clear so 9 that when you read it, you'll know what I'm 10 talking about. 11 The other one is the provision on the 12 number of days. Right now we say a specific 13 number of days, but we don't say how many days a 14 prime can go without paying you. And a lot of 15 people are saying you need to stick a number in 16 there, 45, 30, something like that. 17 We've been on the road since October 18 and we're winding down, but these are the kinds 19 of things that we're getting and the things that 20 we know that we need to consider when we go to 21 make this final. 22 That's why it's important that we hear 23 from you. Don't think that it's just going to 24 go into the pie in the sky and nobody is going 25 to respond or listen to you. I can assure you, 0082 1 some of you have been around very early on in 2 the process, changes have come about because of 3 comments that we received from audiences like 4 you. And so I really do need your comments. I 5 really do need you to take this and look at it 6 and give us comments so that we can consider 7 them. 8 KATHY SMITH: Hi, I'm Kathy Smith from 9 Northern Analytical Laboratories here in 10 Billings. 11 Specifically about the prime contractor 12 paying the subcontractor and the number of days 13 in which they need to do that once they are 14 paid, it's very important to a small business 15 like ours to be paid promptly. And prompt, in 16 my view, is 15 days, maximum 30 days. 17 Because in this economic climate, while 18 we have low interest rates, we're working 19 probably on borrowed money, low interest rates 20 are going to have minimal impact on our 21 operations, whereas, if economic conditions 22 change and we're looking at higher prime rates 23 and most loans are tagged to the prime rate, as 24 that goes up, the cost to us of carrying the 25 bigger contractor becomes very important. And 0083 1 then our cash flow changes quickly and cash is 2 it for us. 3 So I would encourage you to use a 4 15 day or a 30 day maximum for when the prime 5 gets paid to when the sub gets paid. 6 MS. PATRICK: And that's the kind of 7 thing we need a lot of, direct suggestions. 8 That's something when I get the transcripts 9 back, I can look at that, I can say okay, 10 Jeanette let's sit down and talk about this day 11 thing, we have a suggestion of 15 days or an 12 ultimate of 30. 13 We're going to read the comments. 14 That's the type of thing we need, so that when 15 this thing goes final, it will have a number in 16 there. Because that's one of the things we've 17 heard repeatedly. So believe me, I think we're 18 pretty much sure, there's going to a number in 19 here when it comes out. We can't tell you what 20 the number is going to be, but thank you very 21 much. 22 ORIANNE BAKER: My name is Orianne 23 Baker, I'm the business manager for the 24 Chippewa Cree Tribe. 25 One of the things that I was thinking 0084 1 about was a comment yesterday, was the 2 marketing, having somebody on the computer 3 looking at what's out there for procurement or 4 marketing opportunities. Then I was just 5 thinking about when the college students came 6 in, it occurred to me that it would be great as 7 far as you mentioned training, it would be great 8 if we could utilize tribal colleges for you to 9 come in and give that training so that we have 10 students there or some training that goes on, on 11 how to get on the computer and look at what's 12 available. 13 Because I'm sitting back there 14 thinking, I have two businesses that I'm going 15 to try to modify and take to 8( a), and that 16 comment yesterday, and I was thinking now, how 17 am I going to sit there and squeeze out time 18 looking on the computer for opportunities. So 19 if you could provide that training it frees up 20 my time so I'm not sitting in front of a 21 computer doing that, I could move on to other 22 things. 23 MS. PATRICK: And one thing, that's 24 exactly the kind of thinking we want you all to 25 do. Think outside the box. Your small 0085 1 businesses, think about resources you can use 2 where the cost isn't astronomical but you get 3 huge benefit from it. 4 Younger people, they live computers, 5 it's what they do. They know exactly where to 6 go to find stuff in seconds. You or I may sit 7 there forever wandering around one site thinking 8 okay, what is a link, what is this, what is 9 that? They know. And so not only does it save 10 money, it saves time and you still get what you 11 need and they're also getting a learning 12 experience. 13 ORIANNE BAKER: Experience that they 14 could put on a resume and plus, you know, I 15 always said when I was in college that we live 16 on subhuman standards, it's a little bit of 17 money. 18 I just wanted to put an idea out there 19 for something that we're thinking about doing at 20 Rocky Boy, but just put it out there maybe as a 21 suggestion or an idea for other individuals here 22 from other tribes, is that we're looking at a 23 temp service, for a profit temp service 24 connected with our tribal colleges just for that 25 reason, to provide experience plus a way for 0086 1 students to make some extra money while going to 2 school. 3 And that would be a good opportunity, 4 maybe you could think about that in your 5 community if you have a tribal college, a temp 6 service you could say well, as a program 7 director or you could come in and say or as a 8 small tribally owned business, hey, could you 9 come, look and see if there's this kind of 10 contract. You're only paying them for that 11 short period of time, but they get experience 12 plus they get a little bit of money so they 13 don't have to live on subhuman standards. 14 MS. BROWN: Orianne, we need to talk 15 after this, okay? 16 ORIANNE BAKER: Okay. 17 REBECCA JOHNSON: Just a question, 18 comment, Rebecca Johnson, MDT. 19 I wanted to let you know that MDT did 20 adopt under state law on construction projects, 21 they have a prompt payment law that requires 22 our problem that we tried to address was the 23 prime contractors paying the subs, and it's 24 seven days. Seven days, once they are paid they 25 are required to pay their subs in seven days and 0087 1 that's part of our policies and procedures. 2 MS. PATRICK: Thank you, thank you, 3 that's great. 4 MS. BROWN: Can we find that? 5 MS. PATRICK: Can you give us the cite 6 to that or what the wording of the regulation 7 is? 8 REBECCA JOHNSON: Sure, I can get that 9 to you. 10 MS. PATRICK: There's no reason why 11 they shouldn't. Once they've been paid, there's 12 no reason. So that's good to know. 13 The rule stuff, how to do the comments 14 and everything, if you look at the full text of 15 the rule that I gave you, the one that's in the 16 nice little booklet, the thick one, it has on 17 there all the different ways you can submit your 18 comments to us. 19 If you did not make a comment here 20 today verbally, you could send it in writing, we 21 accept them by fax, by e mail, any type of way 22 you want to get them to us, we will receive the 23 comment. So make sure you take a look. It 24 should be on the first page detailing the 25 different places you go to to send in your 0088 1 comments including the website that you can use 2 to do that. So make sure you take advantage of 3 it  second page, sorry. 4 Also, we had a good question yesterday, 5 Jim had asked us when we talked about as a 6 business owner, how do you find out about 7 activities or procurements that occur under a 8 grant. On the direct side, it's really easy, 9 the solicitations come directly from EPA, you go 10 to fedbizopps. But how do you find that $ 4.2 11 billion that's possibly available under a grant? 12 You need to write this down, www. epa. gov/ ogd. 13 That is the site that will take you to the EPA's 14 Office of Grants and Debarment. 15 Once you are there, follow the links to 16 the grants side of the web page. You will see a 17 link on that page that allows you to get into 18 something called GICS, which is the grants 19 information computer system or something like 20 that, I forget what it stands for, but it's 21 called GICS is what you'll see, G I C S. 22 Once you go there, that database will 23 allow you to search for grant opportunities. 24 Once you find out who has the money, your next 25 step is to go to that entity directory. Find 0089 1 out what their procurement practices or their 2 procurement may be under that grant. So for 3 example, you go into GICS, you find out the 4 Montana water authority just a grant for a new 5 treatment system. 6 Your job as a business owner would be 7 contact the water board, water treatment 8 authority, whatever, find out what their plan is 9 for using that grant. Find out if they plan on 10 doing any procurements under that grant. Align 11 yourself, make yourself ready to be on the 12 project. That's how from your perspective you 13 find out what's going on. 14 On the other end, the recipient is 15 supposed to solicit and all that other good 16 stuff to come with the six good faith efforts 17 for procurements under the grant, but for your 18 side, sometimes it works better if you work from 19 both angles to find out where the money is. 20 There's no harm in asking the question if you 21 know they got the money. 22 MS. BROWN: The other part to that too 23 is to contact MBE/ WBE coordinator in your region 24 because they have a representative from that 25 organization that they're in contact with, the 0090 1 one that they negotiate with, et cetera, to make 2 sure, because sometimes we get calls from other 3 entities saying I'm looking for a minority 4 business, like the lady from the state DOT does. 5 REBECCA JOHNSON: But the problem with 6 your projects, they are advertised only locally. 7 They don't go through a central office like DEQ 8 and then can, you know, broadcast it. It's just 9 given to that city. 10 In Belgrade, they just had a big 11 project that they just advertised in their local 12 paper. So, you know, it's a difficult process 13 of learning of all the opportunities in the 14 state unless you happen to get that local paper. 15 MS. PATRICK: That's what I was saying, 16 sometimes you have to go the other way, you 17 know, if you take it on yourself as a business 18 owner to say well, I'm going to find out, you 19 know, the government got the grant, then you 20 could pick up the phone and say look here, I 21 know you have this project going on, send me a 22 copy of the solicitation. I don't get the 23 Belgrade local gazette, I don't get that, so I 24 want to know what the specifics are or send me a 25 copy of it because we know that sometimes 0091 1 recipients do not advertise very broadly, but we 2 just want to make sure that you all know where 3 to go and find the money in the case that they 4 don't. 5 REBECCA JOHNSON: Rebecca Johnson, 6 Montana Department of Transportation. 7 If you start pushing harder from the 8 top down to your grant recipients and then they 9 go to their city administrators, requiring them 10 to start utilizing some more of these resources 11 to get that information out, because Belgrade is 12 not located anywhere near where the majority of 13 your minority and women owned businesses are so 14 they're not aware of this opportunity. If they 15 start going through my office and going to the 16 TBIC and TERO offices and different 17 organizations like that, you're going to get a 18 much broader scope of who is now aware of these 19 opportunities. 20 MS. BROWN: Question for you, Belgrade, 21 when they got the grant, was that to them 22 directly or was it given to the state and the 23 state parceled it out? 24 REBECCA JOHNSON: It was given to the 25 state, and then the state, I believe 0092 1 administered it, but Belgrade was the one that 2 built the water treatment facility. 3 MS. BROWN: Would there have been a sub 4 grant recipient? 5 REBECCA JOHNSON: Right. But they are 6 given the responsibility to advertise and, you 7 know, do the work involved in  8 MS. BROWN: So you as the state grant 9 recipient could have required them to expand 10 their outreach. 11 REBECCA JOHNSON: Right, exactly. Yes. 12 Where I think if you're pushing on them to 13 achieve that goal and really saying you're down, 14 we need to see you bring these numbers up, 15 they're going to get tougher and make sure that 16 then the people that are there providing that 17 money are also working harder to get that goal 18 achieved. 19 MS. BROWN: Right, okay, we understand 20 each other. 21 Any other comments or questions, 22 thoughts? 23 Does it make sense? Yes? Okay, that's 24 good to know. 25 MS. PATRICK: Well, we're done and so 0093 1 we're done early, which means we're going to 2 have a lovely long lunch. 3 MS. JEPSON: No. 4 MS. BROWN: We do give them a break 5 right, because we haven't had a break? 6 MS. JEPSON: One moment, first things 7 first. 8 Kimberly and Jeanette, on behalf of the 9 National Center and the Indian community, I'd 10 like to offer these gifts to you. We really 11 appreciate your support. It's not always common 12 that people come down from D. C. and talk at this 13 level to the people, and it's really 14 appreciated. 15 MS. PATRICK: Thank you. 16 MS. BROWN: Thank you. 17 ( Whereupon, the meeting was concluded 18 at 11: 05 a. m.) 19 20 21 22 23 24 25 0094 1 REPORTER'S CERTIFICATE 2 3 TITLE: National Center for American Enterprise Development 4 HEARING DATE: January 8, 2004 5 LOCATION: Northern Hotel, Billings, Montana 6 7 8 I hereby certify that the proceedings 9 herein are contained fully and accurately on the 10 tapes recorded by me at the conference before 11 the National Center for American Indian 12 Enterprise Development, and that this is a true 13 and correct transcript of the same. 14 15 DATE: January 26, 2004 16 17 Marilyn S. Niezwaag 18 Big Sky Reporting P. O. Box 20941 19 Billings, Montana 59104 20 21 22 23 24 25