Chapter DWD 294

DWD 294.01(1) (1) Scope of chapter. This chapter:

DWD 294.01(1)(a) (a) Prescribes certain policies and procedures governing the debarment of contractors from contracts involving any state agency or local governmental unit.

DWD 294.01(1)(b) (b) Sets forth the treatment to be accorded to debarred contractors.

DWD 294.01(1)(c) (c) Prescribes the procedures to be used to inform state agencies, local governmental units and the general public of the contractors that have been declared ineligible to perform work on public works projects.

DWD 294.01(2) (2) Policy.

DWD 294.01(2)(a) (a) Every state agency or local governmental unit shall solicit bids from, negotiate with, award contracts to, and approve or allow subcontracts with only responsible contractors. Debarment is an appropriate means to effectuate this policy.

DWD 294.01(2)(b) (b) Debarment is a serious action imposed only to protect the public interest.

DWD 294.01 History History: Cr. Register, August, 1987, No. 380, eff. 9-1-87; am. (1) (a), (c) and (2) (a), Register, July, 2000, No. 535, eff. 8-1-00.

DWD 294.02 DWD 294.02 Definitions. In this chapter:

DWD 294.02(1) (1) “Consolidated list” means a list compiled and maintained by the department which contains the names, addresses and other pertinent information as required by this chapter of all contractors that have been debarred under this chapter within a 3 year period from the date of publication.

DWD 294.02(2) (2) “Construction business” means:

DWD 294.02(2)(a) (a) Any business engaged in erecting, constructing, remodeling, repairing, demolishing, altering, painting or decorating buildings, structures, or facilities; and

DWD 294.02(2)(b) (b) Any business engaged in the delivery of mineral aggregate or the transporting of excavated material or spoil as provided by s. 66.0903 (4) or 103.49 (2m), Stats.

DWD 294.02(3) (3) “Contractor” means any individual or legal entity in a construction business involved on a public works project, including its responsible officers, directors, members, shareholders, or partners, irrespective of the name by which the group is designated, provided that any officer, director, member, shareholder, or partner is vested with the management of the affairs of the individual or legal entity.

DWD 294.02(4) (4) “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 nolo contendere plea.

DWD 294.02(5) (5) “Debarment” means action taken by the department under s. DWD 294.05 to exclude a contractor from performing work, either as a prime contractor or subcontractor, for any state agency or local governmental unit for a specified period. A contractor so excluded is“debarred.”

DWD 294.02(6) (6) “Department” means the Wisconsin department of workforce development.

DWD 294.02(7) (7) “Designated representative” means a designee of the secretary who is authorized to conduct a debarment hearing and who may be authorized to issue debarment decisions pursuant to this chapter.

DWD 294.02(8) (8) “Judgment” means a judgment in a civil action by any court of competent jurisdiction.

DWD 294.02(9) (9) “Local governmental unit” has the meaning given in s. 66.0903 (1) (d), Stats.

DWD 294.02(10) (10) “Secretary” means the secretary of the Wisconsin department of workforce development or an authorized representative or designee.

DWD 294.02(11) (11) “State agency” has the meaning given in s. 103.49 (1) (f), Stats.

DWD 294.02 History History: Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (5) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (2) and (5), r. and recr. (3), (9) and (11), Register, July, 2000, No. 535, eff. 8-1-00; correction in (2) (b) and (9) made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535.

DWD 294.03 DWD 294.03 List and records of debarred contractors.

DWD 294.03(1) (1) List.

DWD 294.03(1)(a) (a) The department shall compile and maintain a current consolidated list of all debarred contractors.

DWD 294.03(1)(b) (b) The department shall use the consolidated list to ensure that every state agency or local governmental unit does not solicit bids from, negotiate with, award contracts to, and approve or allow subcontracts with listed contractors, except as otherwise provided in s. DWD 294.05.

DWD 294.03(2) (2) Records. The department shall maintain records relating to each debarred contractor. Records shall contain the following:

DWD 294.03(2)(a) (a) Name and address of each debarred contractor.

DWD 294.03(2)(b) (b) Cause for each debarment and the date each cause occurred.

DWD 294.03(2)(c) (c) Any limitations on or deviations from the normal effect of debarment.

DWD 294.03(2)(d) (d) Effective and termination dates of the debarment.

DWD 294.03 History History: Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (1) (b), Register, July, 2000, No. 535, eff. 8-1-00.

DWD 294.04 DWD 294.04 Treatment of listed contractors.

DWD 294.04(1) (1) Effect. No state agency or local governmental unit may knowingly solicit bids from, negotiate with or award contracts to, and approve or allow subcontracts with a debarred contractor, except as otherwise provided in s. DWD 294.05.

DWD 294.04(2) (2) Review. Prior to any of the procurement actions enumerated in sub. (1), with respect to a particular bidder, offeror or proposed subcontractor, every state agency or local governmental unit shall review the consolidated list. If a bidder, offeror or proposed subcontractor is listed, it may not be awarded a contract or allowed to participate as a subcontractor, except as otherwise provided in s. DWD 294.05.

DWD 294.04(3) (3) Inadvertently awarded contracts or subcontracts.

DWD 294.04(3)(a) (a) If the department learns that a debarred contractor is employed on a public works project, it shall require the state agency or local governmental unit to terminate the employment of the contractor, except as otherwise provided in s. DWD 294.05.

DWD 294.04(3)(b) (b) Contract termination decisions shall be made only after review by and in consultation with the state agency or local governmental unit purchasing personnel, department legal counsel and designated representative, and affected contractors to assure the propriety of the proposed contract termination.

DWD 294.04 History History: Cr. Register, August, 1987, No. 380, eff. 9-1-87; corrections made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. Register, July, 2000, No. 535, eff. 8-1-00.

DWD 294.05 DWD 294.05 Debarment.

DWD 294.05(1) (1) General.

DWD 294.05(1)(a) (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), shall not always require that a contractor be debarred. The seriousness of a contractor’s acts or omissions, past compliance history, attitude and any other mitigating factors shall be considered in making any debarment decision.

DWD 294.05(1)(b) (b) Debarment of a contractor constitutes a debarment of all divisions or other organizational elements of the contractor that are engaged in construction business activities, unless the debarment is explicitly limited to specific divisions or organizational elements. The department shall determine whether a debarment shall apply to a contractor affiliated with a debarred contractor. A corporation is an affiliate of another corporation if substantially the same group of persons owns and manages the 2 corporations.

DWD 294.05(1)(c) (c) A contractor may not be debarred from performing work on a project that is being bid or negotiated if a written or oral offer to perform work for another contractor was received or accepted before the name of the contractor making the offer initially appeared on the consolidated list.

DWD 294.05(1)(d) (d) A contractor may not be debarred from completing any work on a project if the contract for the work was awarded to the contractor prior to the date that the name of the contractor initially appeared on the consolidated list.

DWD 294.05(2) (2) Causes for debarment. The department may debar a contractor for any one or more of the following causes:

DWD 294.05(2)(a) (a) A conviction or civil judgment of a Wisconsin court, a finding of any Wisconsin state agency or local governmental unit, a finding of the department or an admission of:

DWD 294.05(2)(a)1. 1. Failing to pay an employe the proper prevailing wage rate determined for a public works project.

DWD 294.05(2)(a)2. 2. Failing to pay an employe at least 1.5 times the proper hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor determined for a public works project.

DWD 294.05(2)(a)3. 3. Inducing any employe to give up, waive or return any part of the proper prevailing wage rate determined for a public works project.

DWD 294.05(2)(a)4. 4. Falsifying, deliberately destroying, or failing to keep required payroll records on a public works project.

DWD 294.05(3) (3) Procedures for debarment.

DWD 294.05(3)(a) (a) Referral. Department employes and all other persons having information appropriate for department consideration under this section shall promptly report that information to the secretary or designated representative.

DWD 294.05(3)(b) (b) Decision-making process.

DWD 294.05(3)(b)1. 1. The debarment decision-making process shall be as informal as practical, consistent with fundamental fairness principles. The process shall permit contractors to request a hearing before the department. If a request for a hearing is received by the department, then a hearing shall be afforded to the requesting party.

DWD 294.05(3)(b)2. 2. The hearing shall be conducted by a designated representative and shall:

DWD 294.05(3)(b)2.a. a. Permit the contractor to appear with counsel, to submit documents, to present witnesses and to confront and cross-examine any witness the department presents; and

DWD 294.05(3)(b)2.b. b. Ensure that an accurate written summary or tape recording of the hearing is prepared or taken and made available to the contractor, if one is requested before the hearing.

DWD 294.05(4) (4) Notice of proposal to debar. The department shall initiate a debarment proceeding by notifying the involved contractor by certified mail to its last known address. The mail notice shall state:

DWD 294.05(4)(a) (a) The department is considering a debarment;

DWD 294.05(4)(b) (b) The causes for the proposed debarment in terms sufficient to inform the contractor of the conduct or transaction upon which debarment is proposed;

DWD 294.05(4)(c) (c) The contractor may submit, within 20 calendar days from the date of receipt of the department’s mailed notice, a written response or argument in opposition to the proposed debarment;

DWD 294.05(4)(d) (d) The department’s procedures governing debarment decision-making as specified in sub. (5);

DWD 294.05(4)(e) (e) The potential effect of the proposed debarment as provided under s. DWD 294.04; and

DWD 294.05(4)(f) (f) The contractor may request a hearing before the department within the period provided for in par. (c).

DWD 294.05(5) (5) Department’s debarment decision.

DWD 294.05(5)(a) (a) The designated representative shall issue a proposed findings of fact and order within 60 calendar days after the department received the last written response providing information or arguments in opposition to the proposed debarment as provided for in sub. (4) (c) or within 60 calendar days after a hearing has been held as provided for in sub. (4) (f). Any party to the action may request a copy of the proposed findings of fact and order and appeal it within 20 calendar days from the date of issuance by requesting, in writing, an opportunity to present oral or written arguments to the designated representative.

DWD 294.05(5)(b) (b) If a timely appeal is filed, the designated representative shall hold a hearing or review the written arguments on why the proposed order should be modified or reversed. The designated representative shall issue a findings of fact and final order within 30 calendar days of the receipt of the last argument filed.

DWD 294.05(5)(c) (c) If a timely appeal is not filed, the designated representative shall issue a findings of fact and final order within 20 calendar days after the appeal period expires.

DWD 294.05(6) (6) Notice of debarment decision.

DWD 294.05(6)(a) (a) If a debarment is imposed, the department shall promptly notify the contractor by certified mail to its last known address, of the following:

DWD 294.05(6)(a)1. 1. Reference to the notice of proposed debarment that initiated the action under sub. (4);

DWD 294.05(6)(a)2. 2. Reasons for debarment; and

DWD 294.05(6)(a)3. 3. Period of debarment, specifying the effective and termination dates.

DWD 294.05(6)(b) (b) If debarment is not imposed, the department shall give prompt notice of that fact to the contractor by certified mail to its last known address.

DWD 294.05(7) (7) Period of debarment.

DWD 294.05(7)(a) (a) Debarment shall be for a period commensurate with the seriousness of the cause or causes for debarment. Debarment shall not exceed 3 years. Debarment begins on the date the department issues its notice of debarment, or on the date of final disposition by a court of competent jurisdiction, whichever is later.

DWD 294.05(7)(b) (b) 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:

DWD 294.05(7)(b)1. 1. Newly discovered relevant evidence;

DWD 294.05(7)(b)2. 2. Reversal of the conviction or judgment upon which the debarment was based;

DWD 294.05(7)(b)3. 3. A bona fide change in ownership or management of the contractor; or

DWD 294.05(7)(b)4. 4. Elimination of the cause or causes for which the debarment was imposed.

DWD 294.05(7)(c) (c) A contractor may not request the department to terminate or reduce the period or extent of a debarment until full restitution of any unpaid wages has been made to all employes.

DWD 294.05 History History: Cr. Register, August, 1987, No. 380, eff. 9-1-87; correction in (4) (e) made under s. 13.93 (2m) (b) 7., Stats., Register, April, 1996, No. 484; am. (2) (a) (intro.), 4., (3) (b) 2. b. and (5), Register, July, 2000, No. 535, eff. 8-1-00.

DWD 294.06 DWD 294.06 Notification to state agencies and local governmental units.

DWD 294.06(1) (1) The department shall notify all state agencies and local governmental units of the names of all debarred contractors by providing them with a copy of the most current consolidated list available at the same time that the department issues a prevailing wage rate determination to them.

DWD 294.06(2) (2) Local governmental units exempted from applying to the department for prevailing wage rate determinations, pursuant to s. 66.0903 (6), Stats., and all state agencies shall be sent a copy of the most current consolidated list at least quarterly, if any addition or deletion was made to the most current list.

DWD 294.06 Note Note: Section 66.0903 (6) was repealed by 2011 Wis. Act 32, removing exemptions for local governmental units. Sub. (2) will be repealed by future rulemaking.