Trans 504.04 History
History: Cr.
Register, December, 1983, No. 336, eff. 1-1-84.
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)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)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)(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)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(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)(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)(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)(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)(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)(b)
(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.
Trans 504.05(7)(a)(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.
Trans 504.05(7)(b)
(b) The department may extend the debarment for an additional period if the department 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. If an extension is proposed, the procedures in
sub. (3) above shall be followed to extend the debarment.
Trans 504.05(7)(c)
(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:
Trans 504.05(8)(a)(a) The fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with a contractor may be imputed to the contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the contractor, or with the contractor's knowledge, approval or acquiescence. The contractor's acceptance of the benefits derived from the conduct shall be evidence of the contractor's knowledge, approval or acquiescence.
Trans 504.05(8)(b)
(b) The fraudulent, criminal or other seriously improper conduct of a contractor may be imputed to any officer, director, shareholder, partner, employee or other individual associated with the contractor who participated in, knew of or had reason to know of the contractor's conduct.
Trans 504.05(8)(c)
(c) The fraudulent, criminal or other seriously improper conduct of one contractor participating in a joint venture or similar arrangement may be imputed to other participating contractors if the conduct occurred for or on behalf of the joint venture or similar arrangement or with the knowledge, approval or acquiescence of those contractors. Acceptance of the benefits derived from the conduct shall be evidence of the contractor's knowledge, approval or acquiescence.
Trans 504.05 History
History: Cr.
Register, December, 1983, No. 336, eff. 1-1-84
; correction in (3) (b) 3. c. made under s. 13.92 (4) (b) 7., Stats., Register March 2012 No. 675. Trans 504.06(1)(a)(a) The department may, in the public interest, suspend a contractor for any of the causes contained in
sub. (2), using the procedures in
sub. (3).
Trans 504.06(1)(b)
(b) Suspension is to be imposed only on the basis of adequate evidence of one or more of the causes set out in
sub. (2), pending completion of investigation or legal proceedings, when immediate action is necessary to protect the public interest. In assessing the adequacy of the evidence, the department may consider: the amount of available information, the credibility of that information, whether important allegations are corroborated, and what reasonable inferences can be drawn. The department's assessment may include examination of available basic documents such as: contracts, inspection reports and correspondence.
Trans 504.06(1)(c)
(c) Suspension of a contractor constitutes suspension of all divisions or other organizational elements of the suspended contractor, unless the suspension is explicitly limited to specific divisions, organizational elements or commodities.
Trans 504.06(1)(d)
(d) The department may extend the suspension to include any affiliates of a suspended contractor if the affiliates are specifically named and are given written notice of the proposed suspension and an opportunity to respond.
Trans 504.06(2)(a)(a) The department may suspend a contractor whenever it finds adequate evidence that the contractor has engaged in one or more of the following:
Trans 504.06(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 504.06(2)(a)2.
2. Violation of any federal or state antitrust statute relating to the submission of bids or proposals;
Trans 504.06(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 504.06(2)(a)4.
4. Any other offense indicating a lack of business integrity or of business honesty, seriously and directly affecting the responsibility of the contractor or subcontractor.
Trans 504.06(2)(b)
(b) An indictment for any of the causes set forth in
par. (a) may constitute adequate evidence for suspension.
Trans 504.06(2)(c)
(c) The department may suspend a contractor whenever it finds adequate evidence of any other cause of so serious or compelling a nature that it affects the responsibility of a contractor or subcontractor.
Trans 504.06(2)(d)
(d) The department may suspend a contractor based upon a suspension or debarment imposed by another state or federal entity for any of the causes in
par. (a),
(b) or
(c).
Trans 504.06(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 504.06(3)(b)1.1. The suspension decision-making process shall be as informal as practicable, consistent with fundamental due process of law principles. The suspension 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 504.06(3)(b)2.
2. Whenever a proposal to suspend is not based upon an indictment or a suspension or debarment imposed 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 suspension, and if no determination is made on the basis of advice from the department of justice or other prosecuting official that substantial interests of the government in pending or contemplated legal proceedings based upon the same facts as the suspension would be prejudiced, the department shall conduct a fact-finding hearing. A department hearing examiner shall conduct the fact-finding hearing and shall:
Trans 504.06(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 person the department presents;
Trans 504.06(3)(b)2.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 504.06(3)(c)
(c) Notice of suspension. If suspension is imposed, the department shall promptly notify the contractor and any affiliates involved by certified mail return receipt requested. The notice shall state the following:
Trans 504.06(3)(c)1.
1. A decision to suspend has been made, and it was made based upon one or more of the causes enumerated in
sub. (2), which cause or causes shall be sufficiently described to notify the contractor but shall not disclose government evidence unnecessarily.
Trans 504.06(3)(c)2.
2. The suspension is temporary pending the completion of an investigation and of whatever legal proceedings may follow.
Trans 504.06(3)(c)4.
4. The contractor may submit within 15 days, or such lesser time as the department shall state, of the date of the department's certified mailing a written response providing information or argument in opposition to the suspension.
Trans 504.06(3)(c)5.
5. A fact-finding hearing to determine disputed relevant facts shall be conducted under
par. (b), unless:
Trans 504.06(3)(c)5.a.
a. The suspension is based upon an indictment or upon a suspension or debarment imposed by another state or federal entity; or
Trans 504.06(3)(c)5.b.
b. A determination is made, on the basis of advice from the department of justice or another prosecuting official, that substantial interests of the government in pending or contemplated legal proceedings based upon the same facts as the suspension would be prejudiced.
Trans 504.06(3)(c)6.
6. If a fact-finding hearing is required, the department shall schedule a hearing within 30 days after the secretary receives the last written response providing information or argument in opposition to the suspension, as provided for in
subd. 4.
