Chapter Adm 83

Adm 83.25(1)(e)1. 1. The capital contribution made by each joint venturer, the control each will exercise, and the distribution of profit and loss. The agreement shall allocate the control and the distribution of profit and loss in proportion to the contributions of the joint venturers.

Adm 83.25(1)(e)2. 2. The useful business function the joint venture will perform and the part of the work each joint venturer will do.

Adm 83.25(2) (2) The department may require documentation showing how and when the woman’s interest in the business was acquired.

Adm 83.25(3) (3) 

Adm 83.25(3)(a) (a) The department shall apply the following rules in situations in which marital assets form a basis for ownership of a business:

Adm 83.25(3)(a)1. 1. When marital assets other than the assets of the business in question are held jointly or as marital property by both spouses, and are used to acquire the ownership interest asserted by the woman, the department shall conclude that the woman acquired her ownership interest in the enterprise with her own individual resources, provided that the other spouse irrevocably renounces and transfers all rights in the ownership interest in the manner sanctioned by the laws of the state in which either spouse or the enterprise is domiciled. The department may not count a greater portion of joint or marital property assets toward ownership than state law would recognize as belonging to the qualifying member of the business.

Adm 83.25(3)(a)2. 2. The application for WBE certification shall include a copy of the document that is used for legally transferring and renouncing the rights as required in subd. 1.

Adm 83.25(3)(b) (b) In instances where marital ownership is not clearly established, the department may request a marital-property waiver form in which both spouses certify that only the female spouse controls and manages the business, or an affidavit stating that the spouses have signed a marital-property agreement in which the male spouse relinquishes control and management of the business.

Adm 83.25 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.28 Adm 83.28 Determination of control.

Adm 83.28(1) (1) Factors that the department shall consider in determining whether one or more women owners control a business include, but are not limited to, the following:

Adm 83.28(1)(a) (a) Authority and restrictions as indicated in the articles of incorporation, by-laws, minutes of corporate meetings, bank signature cards, partnership and joint venture agreements and other business agreements and documents.

Adm 83.28(1)(b) (b) Membership of one or more women owners on the board of directors.

Adm 83.28(1)(c) (c) Holdings by women owners of the voting interests in the business.

Adm 83.28(1)(d) (d) The managerial experience, knowledge and expertise of the women owners in such areas as finance, budgeting, personnel, production, marketing and research.

Adm 83.28(1)(e) (e) Whether the women owners have the authority to make policy decisions in such areas as finance, budgeting, personnel, production, marketing and research.

Adm 83.28(2) (2) An applicant’s assertion of being independent from a male-owned business may not rest solely on recognition of the women owners by governmental taxing authorities. Other test criteria include, but are not limited to, the following:

Adm 83.28(2)(a) (a) An applicant’s relationship with any male-owned business, that involves any long-term contract or lease agreements.

Adm 83.28(2)(b) (b) The existence of working agreements with any male-owned business.

Adm 83.28(2)(c) (c) An applicant’s status as a party to any contract or lease agreement on terms at variance with industry standards or prudent business practices.

Adm 83.28(2)(d) (d) The existence of restrictive financing agreements with any male-owned business or financial institution that impose undue limitations on the applicant.

Adm 83.28(2)(e) (e) Interlocking stock ownership of the applicant and any male-owned business in the same industry.

Adm 83.28(2)(f) (f) Common directors or officers between the applicant and any male-owned business.

Adm 83.28(2)(g) (g) An applicant’s use of employees, equipment, expertise, facilities, or other resources from a male-owned business.

Adm 83.28(2)(h) (h) The receipt by a male-owned business of financial benefits, such as profits and wages, that are not commensurate with the duties performed.

Adm 83.28(2)(i) (i) An applicant that cannot operate without licenses, permits or insurance held by another business.

Adm 83.28(2)(j) (j) An applicant that does not possess all legal requirements necessary to its operation.

Adm 83.28 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.29 Adm 83.29 Documentation of control.

Adm 83.29(1) (1) An applicant shall submit evidence that one or more women owners have control over the business. Such evidence shall include, but is not limited, to the following:

Adm 83.29(1)(a) (a) Signed bids and contracts.

Adm 83.29(1)(b) (b) Signed debt instruments.

Adm 83.29(1)(c) (c) Signed hiring decisions.

Adm 83.29(1)(d) (d) Bank signature cards and bank resolution authorizations, for savings, checking and other financial accounts.

Adm 83.29(1)(e) (e) Written proof that the organizational and governing documents of an applicant, such as limited liability company operating agreements, partnership agreements, or articles of incorporation and by-laws, do not contain any provision which restricts the woman owner from exercising control of the business.

Adm 83.29(1)(f) (f)

Adm 83.29(1)(f)1. 1. Documentation, such as résumés, showing that the women owners have the managerial experience, knowledge and expertise – in such areas as finance, budgeting, personnel, production, marketing and research — needed for exercising day-to-day control over the business.

Adm 83.29(1)(f)2. 2. The department may waive the managerial experience required in subd. 1., when a woman is starting a woman-owned business.

Adm 83.29(2) (2) The managerial experience, knowledge and expertise of the women owners substantially demonstrates their ability to make independent and unilateral business decisions necessary to guide the future and destiny of the business. The applicant may document this ability and control in a number of ways. For a woman owner to demonstrate the extent of this control, the department may consider the following or other aspects of a business:

Adm 83.29(2)(a) (a) Authority to sign payroll checks and letters of credit.

Adm 83.29(2)(b) (b) Signature responsibility for insurance or bonds.

Adm 83.29(2)(c) (c) Authority to negotiate and execute contracts and financial services agreements.

Adm 83.29(2)(d) (d) Ability to obtain bank authorization resolutions.

Adm 83.29(3) (3) Agreements for support services are permitted as long as the power of the woman owner to control the company is not restricted or impaired, as determined by the department.

Adm 83.29 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.32 Adm 83.32 Determination of active management. Factors that the department shall consider in determining whether one or more women owners actively manage a business include, but are not limited to, the following:

Adm 83.32(1) (1) Direct operational management.

Adm 83.32(1)(a) (a) The operational management of the woman owner is the demonstrated extent to which the woman owner actually operates the day-to-day business.

Adm 83.32(1)(b) (b) Departmental assessments of operational management shall rest upon the peculiarities of the industry of which the business is a part. In order to clarify the level of operational management of the woman owner, the department may consider each of the following:

Adm 83.32(1)(b)1. 1. ‘Experience.’ The woman owner has education, demonstrable working knowledge or experience in the area of specialty or industry claimed in the application.

Adm 83.32(1)(b)2. 2. ‘Responsibility for decision-making.’

Adm 83.32(1)(b)2.a. a. The woman owner makes basic decisions pertaining to the daily operation of the business, such as the purchase of goods, equipment, business inventory and services.

Adm 83.32(1)(b)2.b. b. The woman owner supervises the business’s employees.

Adm 83.32(1)(b)3. 3. ‘Technical competence.’

Adm 83.32(1)(b)3.a. a. The woman owner has technical competence in the industry or specialty of the business or a working knowledge of the technical requirements of the business sufficient to critically evaluate the work of subordinates.

Adm 83.32(1)(b)3.b. b. The woman owner has the ability to perform in her area of specialty or expertise without substantial reliance upon finances and resources — such as equipment, automobiles and facilities — of males or non-woman-owned business enterprises.

Adm 83.32(2) (2) Delegated operational management. Where the actual day-to-day operational management is delegated to a person other than a woman owner, the active-management requirements may be met if the woman owner has the ultimate power to hire and fire that person.

Adm 83.32(3) (3) Potential constraints on operational management. In reviewing governance documents and issues, the department shall give special attention to the extent to which all of the following aspects affect the ability of the woman owner to direct the management and policies of the business:

Adm 83.32(3)(a) (a) The composition of the business’s governing body.

Adm 83.32(3)(b) (b) The functioning of the governing body.

Adm 83.32(3)(c) (c) The content of shareholder’s agreements, bylaws, or state incorporation statutes.

Adm 83.32 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.33 Adm 83.33 Documentation of active management. The applicant shall submit evidence that one or more women owners actively manage the business. This evidence may include, but is not limited to, the following:

Adm 83.33(1) (1) Signed purchase orders, invoices and contracts.

Adm 83.33(2) (2) Evidence that the women owners have delegated work assignments to the business employees.

Adm 83.33(3) (3) Documentation, such as résumés, showing that the women owners have the education or work experience in the skill areas required to produce the product or service provided by the business.

Adm 83.33(4) (4) Where the actual day-to-day operational management is delegated to a person other than a woman owner, documentation, such as a signed contract, showing that the women owners have the ultimate power to hire and fire that person.

Adm 83.33 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.36 Adm 83.36 Determination of performance of a useful business function. Factors that the department shall consider in determining whether a woman-owned business is performing a useful business function include, but are not limited to, the following:

Adm 83.36(1) (1) The degree to which the business has customers other than the state.

Adm 83.36(2) (2) The adequacy of the business’s resources to carry out its business functions.

Adm 83.36(3) (3) The degree to which the business is independent of control or substantial influence by another business. Business relationships that tend to defeat the useful business function include, but are not limited to, shared space, equipment, employees, or other resources, and financing agreements.

Adm 83.36(4) (4) Whether the business acts as a conduit to transfer funds to a male-owned business, unless doing so is a normal industry practice.

Adm 83.36 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.37 Adm 83.37 Documentation of performance of a useful business function. The applicant shall submit evidence that the business is performing a useful business function. This evidence may include, but is not limited to, the following:

Adm 83.37(1) (1) Contracts, purchase orders, invoices, and other documents demonstrating that the business has customers.

Adm 83.37(2) (2) Evidence that the quantity, type and condition of the business’s equipment and inventory are adequate to carry out its business functions.

Adm 83.37(3) (3) Loans and other financing agreements, leases, employee contracts, payroll records and other documents demonstrating that the business’s relationships with non-woman-owned businesses do not preclude it from performing a useful business function.

Adm 83.37(4) (4) Contracts, purchase orders, invoices, and other documents showing that the business has a diversity of suppliers and is not acting as a conduit for a single supplier.

Adm 83.37 History History: CR 06-113: cr. Register May 2007 No. 617, eff. 6-1-07.

Adm 83.40 Adm 83.40 Special circumstances. Any one of the following circumstances creates a presumption that an applicant does not satisfy the eligibility standards for certification as a WBE. In such instances, the applicant has the burden of establishing to the department’s satisfaction that the business meets the eligibility standards despite the existence of one or more of the following factors:

Adm 83.40(1) (1) The business was formed within one year prior to an application for certification.

Adm 83.40(2) (2) The ownership or control of the business has changed within one year prior to an application for certification.

Adm 83.40(3) (3) Shares of stock transferred from a male-owned business to a woman owner of the business, within one year prior to an application for certification.

Adm 83.40(4) (4) The business has unissued shares that, if issued, could result in less than 51% woman ownership of the business or in less than dominant control by women owners.

Adm 83.40(5) (5) The business is subject to conversion rights that, if exercised, would result in less than 51% woman ownership of the business or in less than dominant control by women owners.

Adm 83.40(6) (6) One or more of the women owners is a former or current employee of a male-owned business that has an ownership interest in or a business relationship with the applicant, particularly if the male-owned business is in a substantially similar line of business.

Adm 83.40(7) (7) An applicant’s directors or management or both, are substantially the same as those of a male-owned business that has an ownership interest in, an investment in, or a business relationship with the applicant, particularly if the male-owned business is in a substantially similar line of business.

Adm 83.40(8) (8) The business shares indistinguishable facilities, such as office space; production, distribution or storage facilities; machinery and equipment; or employees, with a non-woman-owned business.