In Mid-America Milling Co. LLC v. U.S. DOT, two non-DBE trucking firms backed by the Wisconsin Institute for Law & Liberty challenged the Disadvantaged Business Enterprise (DBE) program’s race and gender-based presumptions as unconstitutional. On May 28, 2025 the plaintiffs and US DOT jointly asked the court to enter a consent order resolving the case by agreeing that the DBE program is unconstitutional.
The order is not yet final and awaiting approval by the Judge overseeing the case. However, if it is entered as written, the consent agreement will place a permanent nationwide injunction that effectively stops the DBE program.
What’s next? The judge presiding over the case will determine whether to approve the Joint Motion for the Consent Order. Should the program end, US DOT will likely issue implementation guidance similar to the one it did when there was a limited preliminary injunction on the DBE program in late 2024 to guide state DOTs and other recipients on next steps.
AGC of America believes that if existing contract preference programs are altered or replaced due to legal challenges rendering them unlawful, there should be other resources to support small and emerging construction firms. This is why in 2024, AGC convened a Contracts Preference Programs Taskforce to come up with suggestions and resources. Key among these is a List of Key Elements document and the Contractor Business Essentials: A Launchpad for Small Business Success.
Contractor Business Essentials: A Launchpad for Small Business Success – AGC is working with a small task force of members to refresh the existing Emerging Contractors Education Content. The updated content will be a series of interactive modules that combine video, knowledge checks, and downloadable resources that will be available virtually and on-demand for small businesses to go through the course at their own pace.
List of Key Elements – Based off a AGC member survey, the taskforce agreed that any new or revised program should incorporate key elements that support small and emerging construction firms. Construction firms face significant challenges, and it is in the best interest of the industry to maintain a strong and competitive pool of small and emerging firms.
The situation is still developing, so stay tuned to our Construction Advocacy in Action newsletter to get the latest updates.
For additional information, please contact Deniz Mustafa.