Regardless, Congress reauthorized the program in 2021 through the Infrastructure Investment and Jobs Act (IIJA) with minimal revisions, just as it has done for decades.
Then 2025 brought historic developments in DBE policy. Let’s look at how litigation, changing presidential administrations, aggressive rule revisions, and – of course – politics landed us here.

See You in Court
It began with a lawsuit filed in Kentucky two years ago, when a pair of non-DBE firms (Mid-America Milling Co. and Bagshaw Trucking) challenged the program’s constitutionality. The law spawned other litigation over the years, but this suit seemed different. It came as federal courts were casting doubt on similar initiatives related to college admissions and small business assistance, among others.

In the fall of 2024, Federal District Judge Gregory Van Tatenhove advised that he would likely agree with this challenge. It appeared the lawsuit could have much wider consequences once the legal process played out.
The defendants had been the Biden-era U.S. Department of Transportation (DOT), Federal Highway Administration, and their leadership, which stood by the existing DBE program. The inauguration of President Trump on January 20 meant the “new” DOT, led by Secretary Sean Duffy, could take a different direction if it wished. As the saying goes, “elections have consequences.”

So, on May 28, DOT and the plaintiffs proposed a settlement to the judge. For participation in the DBE program, there would no longer be a “rebuttable presumption” that women, Black, Hispanic, Native, Asian Pacific and Subcontinent Asian Americans are socially and economically disadvantaged. The program would continue in law, but with this major revision.

In reviewing and reporting to our members on this proposal, I fully realized how momentous it was. In my office, I have three feet of files on the DBE program dating back to the 1980s. Whether you agreed with it or not, that seven-page document submitted to the judge – if approved – would override many of the rulemakings and policy debates recounted in those folders.

Over the summer, as we awaited the judge’s response, I advised ARTBA members to continue complying with current DBE requirements while preparing for the likely, longer-term changes in the proposed settlement. And then…

Ready or Not
On October 1, as part of the recent D.C. tradition known as the “government shutdown,” DOT announced a pause in federal reimbursements for two mega projects in the New York City area. Even though federal-aid transportation dollars were exempt from the shutdown, the Department wanted to review whether the projects’ contracting practices were consistent with the administration’s DBE-related policies. And by the way, those were detailed in a brand new “interim final rule” (primarily a direction to the states) taking effect October 3.

In other words, the changes anticipated from the Kentucky lawsuit were coming…now. Specifically:
All existing DBE firms were immediately decertified. They would be reevaluated based on a “personal narrative” of disadvantage, without regard to gender or race. Other firms could now apply for DBE status as well.
Essentially, the entire DBE program had been suspended and would only be reactivated in a given state once it had completed the reevaluation process.
Once restarted, nearly all other aspects of the DBE program would remain for the time-being.

Needless to say, the scope and swiftness of this policy change made headlines in our industry. ARTBA analyzed these developments for members, conferred with our chapters and DBE policy task force on how the changes were playing out, and remained in contact with federal officials to seek additional clarifications, such as how these revisions applied to existing projects.

Now What?
In the New Year, states will continue applying these changes, but some key questions remain:
• Will Judge Van Tatenhove (remember him?) approve the proposed settlement, or compel DOT to change direction again?
• Will anyone challenge DOT’s new DBE rule in a lawsuit of their own?
• Will Congress reshape the program when it reauthorizes the federal highway and transit programs?
While 2025 was eventful for DBE policy, the coming year will likely be similar. Please stay in touch with ARTBA as we help navigate these changes to ensure the safe and efficient delivery of projects, while maximizing opportunities for all firms who can help build them.