Chapter Trans 504

Ch. Trans 504 Note Note: Chapter Trans 504 was created as an emergency rule effective February 25, 1983.

Trans 504.01 Trans 504.01 Scope and policy.

Trans 504.01(1) (1) Scope of chapter. This chapter:

Trans 504.01(1)(a) (a) Prescribes certain policies and procedures governing the debarment and suspension of contractors from contracts involving the Wisconsin department of transportation.

Trans 504.01(1)(b) (b) Provides for the listing of debarred contractors, of suspended contractors and of contractors declared ineligible for department contracts.

Trans 504.01(1)(c) (c) Sets forth the treatment accorded contractors listed as debarred, suspended, or ineligible.

Trans 504.01(2) (2) Policy.

Trans 504.01(2)(a) (a) The department shall solicit bids from, award contracts to and approve subcontracts with only responsible business concerns and individuals. Debarment and suspension are appropriate means to effectuate this policy.

Trans 504.01(2)(b) (b) Debarment and suspension are serious actions imposed only to protect the public interest, not for punishment.

Trans 504.01 History History: Cr. Register, December, 1983, No. 336, eff. 1-1-84.

Trans 504.02 Trans 504.02 Definitions. In this chapter:

Trans 504.02(1) (1) “Adequate evidence” means information sufficient to support a reasonable belief that a particular act or omission has occurred.

Trans 504.02(2) (2) “Affiliates” means business concerns or individuals having a relationship whereby one directly or indirectly controls or can control the other or whereby a third business concern or individual directly or indirectly controls or can control the subject business concerns or individuals.

Trans 504.02(3) (3) “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.

Trans 504.02(4) (4) “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. This definition 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.

Trans 504.02(5) (5) “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 nolo contendere plea.

Trans 504.02(6) (6) “Debarment” means action taken by the department under s. Trans 504.05 to exclude a contractor from contracting with the department and from department-approved subcontracting for a specified period. A contractor so excluded is “debarred.”

Trans 504.02(7) (7) “Department” means the Wisconsin department of transportation.

Trans 504.02(8) (8) “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.

Trans 504.02(9) (9) “Ineligible” means excluded from contracting with the department and, if appropriate, from department-approved subcontracting, if under statute, rule, order or legal authority other than this chapter.

Trans 504.02 Note Note: Examples of reasons for ineligibility are wage-rate violations, civil rights violations and deficient progress.

Trans 504.02(10) (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.

Trans 504.02(11) (11) “Judgment” means a judgment in a civil action by any court of competent jurisdiction.

Trans 504.02(12) (12) “Secretary” means the secretary of the department or an authorized representative or designee.

Trans 504.02(13) (13) “Suspension” means action taken by the department under s. Trans 504.06 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.”

Trans 504.02 History History: Cr. Register, December, 1983, No. 336, eff. 1-1-84.

Trans 504.03 Trans 504.03 List and records of debarred and suspended contractors.

Trans 504.03(1) (1) List.

Trans 504.03(1)(a) (a) The department shall compile and maintain a current, consolidated list of debarred, suspended and ineligible contractors.

Trans 504.03(1)(b) (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.

Trans 504.03(2) (2) Records. The department shall maintain records relating to each debarred or suspended contractor. Records shall contain the following:

Trans 504.03(2)(a) (a) Names and addresses of all debarred or suspended contractors.

Trans 504.03(2)(b) (b) Cause or causes for each debarment or suspension.

Trans 504.03(2)(c) (c) Any limitations on or deviations from the normal effect of debarment or suspension.

Trans 504.03(2)(d) (d) Effective date of the debarment or suspension and, in the case of a debarment, the termination date.

Trans 504.03 History History: Cr. Register, December, 1983, No. 336, eff. 1-1-84.

Trans 504.04 Trans 504.04 Treatment of listed contractors.

Trans 504.04(1) (1) Effect.

Trans 504.04(1)(a) (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 dealing with the contractor exists.

Trans 504.04(1)(b) (b) The department shall 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 legal authorities. 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 legal authorities.

Trans 504.04(2) (2) Review. Prior to any pre-award conference or to any of the procurement actions enumerated in sub. (1), with respect to a particular bidder, offeror or proposed subcontractor, the department shall review the consolidated list.

Trans 504.04(3) (3) Current contract continuation.

Trans 504.04(3)(a) (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.

Trans 504.04(3)(b) (b) Contract termination decisions, if any, may be made only after review by and consultation with both department contracting and purchasing personnel and department legal counsel to assure the propriety of the proposed contract termination.

Trans 504.04(3)(c) (c) The department shall 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.

Trans 504.04(4) (4) 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.

Trans 504.04 History History: Cr. Register, December, 1983, No. 336, eff. 1-1-84.

Trans 504.05 Trans 504.05 Debarment.

Trans 504.05(1) (1) General.

Trans 504.05(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), 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.

Trans 504.05(1)(b) (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, organizational elements or commodities.

Trans 504.05(1)(c) (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).

Trans 504.05(1)(d) (d) When no suspension is in effect pursuant to s. Trans 504.06 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.

Trans 504.05(2) (2) Causes for debarment. The secretary may debar a contractor for any one or more of the following causes:

Trans 504.05(2)(a) (a) Conviction, civil judgment or admission of:

Trans 504.05(2)(a)1. 1. Fraud, collusion or any criminal offense in connection with obtaining, attempting to obtain or performing a public contract or subcontract;

Trans 504.05(2)(a)2. 2. Violation of any federal or state antitrust statute relating to the submission of bids or proposals;

Trans 504.05(2)(a)3. 3. Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property or obstruction of justice; or

Trans 504.05(2)(a)4. 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.

Trans 504.05(2)(b) (b) Violation of the terms of any government contract or subcontract when that violation is so serious as to justify debarment, including:

Trans 504.05(2)(b)1. 1. Willful failure to perform in accordance with a contract; or

Trans 504.05(2)(b)2. 2. A history of failure to perform or of unsatisfactory performance of one or more contracts.

Trans 504.05(2)(c) (c) Any other cause that is so serious or compelling that it affects the responsibility of a contractor or subcontractor.

Trans 504.05(2)(d) (d) Debarment for any of the above causes listed in pars. (a) through (c) by another state or federal entity.

Trans 504.05(3) (3) Procedures for debarment.

Trans 504.05(3)(a) (a) Referral. Department employees and all other persons having information appropriate for department consideration under this section shall promptly report that information to the secretary.

Trans 504.05(3)(b) (b) Decision-making process.

Trans 504.05(3)(b)1. 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.

Trans 504.05(3)(b)2. 2. Whenever a proposal to debar is based upon a conviction, judgment 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.

Trans 504.05(3)(b)3. 3. Whenever a proposal to debar is not based upon a conviction, 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:

Trans 504.05(3)(b)3.a. 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;

Trans 504.05(3)(b)3.b. 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

Trans 504.05(3)(b)3.c. c. Act in accord with and have the authority provided by s. 227.46, Stats.

Trans 504.05(4) (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:

Trans 504.05(4)(a) (a) That the department is considering a debarment;

Trans 504.05(4)(b) (b) The reasons for the proposed debarment in terms sufficient to notify the contractor of the conduct or transaction upon which debarment is proposed;

Trans 504.05(4)(c) (c) The cause or causes under sub. (2) that the department relies upon for the proposed debarment;

Trans 504.05(4)(d) (d) That the contractor may submit, within 15 days of the date of the department’s mailed notice, a written response providing information or argument in opposition to the proposed debarment;

Trans 504.05(4)(e) (e) The department’s procedures governing debarment decision-making as specified in sub. (5);

Trans 504.05(4)(f) (f) The potential effect of the proposed debarment as provided under s. Trans 504.04; and

Trans 504.05(4)(g) (g) That pending a debarment decision, no contract will be awarded to, and no subcontracts will be approved for, the contractor.

Trans 504.05(5) (5) Department’s debarment decision.

Trans 504.05(5)(a) (a) In debarment actions based upon a conviction, 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. Trans 504.06, the debarment decision shall be made within 30 days after the secretary receives the last written response providing information or argument in opposition to the proposed debarment as provided for in sub. (4) (d).

Trans 504.05(5)(b) (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 must be established by a preponderance of the evidence. The debarment decision shall by made after the conclusion of the proceedings with respect to the disputed facts.

Trans 504.05(6) (6) Notice of department decision.

Trans 504.05(6)(a) (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:

Trans 504.05(6)(a)1. 1. Reference to the notice of proposed debarment that initiated the action under sub. (4);

Trans 504.05(6)(a)2. 2. Reasons for debarment; and