Wisconsin Legislature: Adm 24.04(1)(a)

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.02 Definitions. In this chapter:

(1) “Adequate evidence” means information sufficient to support a reasonable belief that a particular act or omission has occurred.

(2) “Affiliate” means a business entity or individual having a relationship whereby one directly or indirectly controls or can control the other or whereby a third business entity or individual directly or indirectly controls or can control the subject business entity or individual.

(3) “Civil judgment” means a judgment in a civil action by any court of competent jurisdiction.

(4) “Consolidated list” means a list compiled and maintained by the department and containing the names of contractors that have been debarred or suspended under this chapter or that have been declared ineligible under statute, rule, order or legal authority other than this chapter.

(5) “Contractor” means any individual or any legal entity, including its officers and directors, that submits bids or proposals for, or is awarded or may reasonably be expected to submit bids or proposals for or be awarded a department contract. “Contractor” includes any subcontractor of a contractor that conducts business with the department as an agent or representative of a contractor and any individual or legal entity that conducts business with the department as an agent or representative of a contractor.

(6) “Conviction” means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea and includes a conviction entered upon a plea of no contest.

(7) “Debarment” means action taken by the department under s. Adm 24.05 to exclude a contractor from contracting with the department and from department-approved subcontracting for a specified period. A contractor so excluded is “debarred.”

(8) “Department” means the Wisconsin department of administration.

(9) “Hearing examiner” means a designee of the secretary who is authorized to conduct a fact-finding hearing and to prepare written findings of fact and who may be authorized to issue debarment and suspension decisions pursuant to this chapter.

(10) “Indictment” includes an indictment for a criminal offense, an information or any other filing by a competent authority charging a criminal offense that results in finding probable cause to believe a felony has been committed and in binding the defendant over for trial.

(11) “Ineligible” means excluded from contracting with the department and, if appropriate, from department-approved subcontracting, under statute, rule, order or legal authority other than this chapter.

Note: Examples of reasons for ineligibility are wage-rate violations, civil rights violations and deficient progress.

(12) “Secretary” means the secretary of the department or an authorized representative or designee.

(13) “Suspension” means action taken by the department under s. Adm 24.06 to exclude a contractor from contracting with the department or from department-approved subcontracting temporarily pending the completion of an investigation or of a debarment decision-making proceeding. A contractor so excluded is “suspended.”

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.03 List and records of debarred and suspended contractors.

(1) List.

(a) The department shall compile and maintain a current, consolidated list of debarred, suspended and ineligible contractors.

(b) The department shall use the consolidated list to ensure that it does not solicit offers from, award contracts to, or consent to subcontract with listed contractors, except as otherwise provided in this chapter.

(2) Records. The department shall maintain records relating to each debarred or suspended contractor. Records shall contain all of the following:

(a) Names and addresses of all debarred or suspended contractors.

(b) Cause or causes for each debarment or suspension.

(d) Effective date of the debarment or suspension and, in the case of a debarment, during the term of the contract.

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.04 Treatment of listed contractors.

(1) Effect.

(a) The department may not knowingly solicit bids from, award contracts to, renew an existing contract with, or consent to subcontracts with a debarred or suspended contractor, unless the secretary determines, in writing, that a compelling reason for such dealing with the contractor exists.

(b) The department may not enter a contract with an ineligible contractor and, if applicable, shall exclude ineligible contractors from subcontracts under the conditions and for the period set forth in the applicable statutes, rules, orders or other legal authority. The department may not knowingly solicit bids from, award contracts to, renew an existing contract with, or consent to subcontract with these contractors except in accord with the applicable statutes, rules, orders or other legal authority.

(2) Current contract continuation.

(a) Notwithstanding the listing of a contractor, the department may continue contracts or subcontracts in existence at the time the contractor was debarred or suspended, unless the secretary determines that contract termination is in the public interest.

(b) Contract termination decisions under par. (a), if any, may be made only after review by and consultation with both department contracting personnel and department legal counsel to assure the propriety of the proposed contract termination.

(c) The department may not renew existing contracts or subcontracts with debarred or suspended contractors, unless the secretary determines and states in writing a compelling reason for the contract renewal or extension.

(3) Subcontract restrictions. When a debarred or suspended contractor is proposed as a subcontractor for any subcontract subject to department approval, the department may not give approval unless the secretary determines and states in writing a compelling reason for the approval.

History: CR 10-063: cr. Register December 2010 No. 660, eff. 1-1-11.

Adm 24.05 Debarment.

(1) General.

(a) The department may, in the public interest, debar a contractor for any of the causes contained in sub. (2), using the procedures in sub. (3). The existence of a cause for debarment as specified in sub. (2), however, shall not necessarily require that a contractor be debarred; the seriousness of any contractor’s acts or omissions and any mitigating factors shall be considered in making any debarment decision.

(b) Debarment of a contractor constitutes debarment of all divisions or other organizational elements of the debarred contractor, unless the debarment is explicitly limited to specific divisions or organizational elements.

(c) The department may extend the debarment to include any affiliates of a debarred contractor, if the affiliates are specifically named and are given written notice of the proposed debarment and an opportunity to respond pursuant to sub. (4).

(d) When no suspension is in effect pursuant to s. Adm 24.06 at the time the department contemplates debarment of a contractor, no contracts shall be awarded to, and no subcontracts shall be approved for, the contractor, pending a debarment decision by the department.

(2) Causes for debarment. The secretary may debar a contractor for any one or more of the following causes:

(a) Conviction, civil judgment or admission of:

1. Fraud, collusion or any criminal offense in connection with obtaining, attempting to obtain or performing a public contract or subcontract;

2. Violation of any federal or state antitrust statute relating to the submission of bids or proposals;

3. Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property or obstruction of justice; or

4. Any other offense indicating a lack of business integrity or of business honesty which offense seriously and directly affects the responsibility of the contractor or subcontractor.

(b) Violation of the terms of any government contract or subcontract when that violation is so serious as to justify debarment, including:

1. Willful failure to perform in accordance with a contract; or

2. A history of failure to perform or of unsatisfactory performance of one or more contracts.

(c) Any other cause that is so serious or compelling that it affects the ability of a contractor or subcontractor to meet all contract requirements.

(d) Debarment for any of the above causes listed in pars. (a) to (c) by another state or federal entity.

(3) Procedures for debarment.

(a) Referral. Department and other state employees having information appropriate for department consideration under this section shall promptly report that information to the secretary.

(b) Decision-making process; fact finding.

1. The debarment decision-making process shall be as informal as practicable, consistent with fundamental due process of law principles. The debarment decision-making process shall permit contractors and any specifically named affiliates to submit information and arguments in opposition to a proposed debarment. The department may require that a contractor’s opposition be submitted in writing or may permit an oral presentation in person or through a representative.

2. Whenever a proposal to debar is based upon a conviction, civil judgment, admission or debarment by another state or federal entity for any of the causes listed in sub. (2), the department need not conduct a fact-finding hearing.

3. Whenever a proposal to debar is not based upon a conviction, civil judgment, admission or debarment by another state or federal entity, and if the department finds that the contractor’s opposition raises a genuine dispute over facts relevant to the proposed debarment, the department shall conduct a fact-finding hearing. A department hearing examiner shall:

a. Permit the contractor to appear with counsel, to submit documents, to present witnesses and to confront and cross-examine any person the department presents;

b. Ensure that a transcript of the hearing is prepared and made available to the contractor at a reasonable cost, unless the contractor and the department mutually waive the transcript requirement; and

c. Act in accord with and have the authority provided by s. 227.46, Stats.

(4) Notice of proposal to debar. The department shall initiate a debarment proceeding by informing the involved contractor and any specifically named affiliate by certified mail return receipt requested. The mailed notice shall state:

(a) That the department is considering a debarment;

(b) The reasons for the proposed debarment in terms sufficient to notify the contractor of the conduct or transaction upon which debarment is proposed;

(d) That the contractor may submit, within 15 days after the date of the department’s mailed notice, a written response providing information or argument in opposition to the proposed debarment;

(e) The department’s procedures governing debarment decision-making as specified in sub. (5);

(f) The potential effect of the proposed debarment as provided under s. Adm 24.04; and

(g) That pending a debarment decision, no contract will be awarded to, and no subcontracts will be approved for, the contractor.

(5) Department’s debarment decision.

(a) In debarment actions based upon a conviction, civil judgment, or admission or upon debarment by another state or federal entity for any of the causes listed in sub. (2) or in debarment actions in which no dispute exists over facts relevant to the proposed debarment, the secretary shall make a debarment decision based upon the information in the administrative record, including any submission made by the affected contractor. If no suspension is in effect under s. Adm 24.06, the debarment decision shall be made within 30 days after the secretary receives the written response providing information or argument in opposition to the proposed debarment as provided for in sub. (4) (d).

(b) In debarment actions in which a fact-finding hearing is necessary under sub. (3) (b) 3., the designated hearing examiner shall prepare written findings of fact, and the secretary or designee shall render a debarment decision based upon those written findings of fact. A cause for debarment shall be established by a preponderance of the evidence. The debarment decision shall be made after the conclusion of the proceedings with respect to the disputed facts.

(6) Notice of department decision.

(a) If debarment is imposed, the department shall promptly notify the contractor and any affiliates involved by certified mail return receipt requested. The notice shall contain the following:

1. Reference to the notice of proposed debarment that initiated the action under sub. (4);

2. Reasons for debarment; and

3. Period of debarment, specifying the effective date.

(b) If debarment is not imposed, the department shall give prompt notice of that fact to the contractor and any affiliates involved by certified mail return receipt requested.

(7) Period of debarment.

(a) Debarments shall be for a period commensurate with the seriousness of the cause or causes for debarment. Generally, debarment shall not exceed 3 years. If suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.

(b) After the department imposes a debarment period upon a contractor, the department may extend that period if it determines that an extension is necessary to protect the public interest. However, an extension may not be based solely on the facts and circumstances upon which the initial debarment was based. Any extension proposed shall follow the procedures in sub. (3) above.

(c) The department may terminate a debarment or may reduce the period or extent of a debarment, upon the contractor’s request, for reasons considered appropriate by the department, such as:

1. Newly discovered relevant evidence;

2. Reversal of the conviction or civil judgment upon which debarment was based;

3. A bona fide change in ownership or management of the contractor; or

4. Elimination of the cause or causes for which debarment was imposed.

(8) Imputed conduct.