Chapter Adm 84

Adm 84.16 Adm 84.16 Decertification criteria.

Adm 84.16(1) (1) The department may decertify a business which it finds no longer qualifies as a minority business enterprise under s. Adm 84.03. Sufficient reasons for decertification include the following:

Adm 84.16(1)(a) (a) The status of the minority business has changed to the extent that it no longer satisfies the requirement of ownership, control and active management of the business or the requirement of performance of a useful business function.

Adm 84.16(1)(b) (b) The minority business fails to submit an application for certification renewal within the allotted time period.

Adm 84.16(1)(c) (c) The minority business fails to comply with a reasonable request from the department for records or information within the allotted time period.

Adm 84.16(1)(d) (d) The minority business knowingly provides false or misleading information in support of its renewal application or in response to the department’s request for records or information.

Adm 84.16(2) (2) A decertified business may reapply for certification no earlier than 12 months from the date of the final notice of decertification. A new application and appropriate documentation shall be submitted to the department as if the business were requesting initial certification. The previous decertification shall be noted in the application.

Adm 84.16 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1) (intro.) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.

Adm 84.17 Adm 84.17 Decertification procedure.

Adm 84.17(1) (1) Initiation of decertification process.

Adm 84.17(1)(a) (a) The department may, at the request of any state agency or at its own discretion, examine any certified minority business enterprise to verify that it qualifies for certification.

Adm 84.17(1)(b) (b) Any individual or firm who believes that a business certified as a minority business enterprise does not qualify under the standards of eligibility for certification may request a decertification investigation by the department. Such requests must be written and signed and must contain specific identification of the affected business, and the basis for the belief that it does not meet the eligibility standards. After reviewing the request, the department shall decide either to conduct a review of the minority business enterprise or to allow the certification to stand. The department’s decision may not be appealed by a third party.

Adm 84.17 Note Note: Written requests for decertification investigations should be sent to: WI Supplier Diversity Program, Department of Administration, P.O. Box 7970, Madison, WI 53707-7970.

Adm 84.17(2) (2) Investigation procedure.

Adm 84.17(2)(a) (a) The department may notify the business, in writing, that it is the subject of a decertification investigation, explaining the basis for its belief that the business does not meet the eligibility standards for certification.

Adm 84.17(2)(b) (b) The department may request records or other documentation from the business, may conduct an on-site visit of the business facilities and may question other parties in its investigation.

Adm 84.17(2)(c) (c) The department may impose a time limit of not less than 15 days in which the business must respond to a request for records or other documentation. A reasonable extension may be given by the department for good cause shown by the business. Requests for time extensions should be made to the program and should specify the length of time for which the extension is being requested and the reason for the request. If the business fails to provide the information in the time requested, the department shall issue a notice of intent to decertify.

Adm 84.17(2)(d) (d) Upon completion of the investigation, a written report shall be prepared which shall include:

Adm 84.17(2)(d)1. 1. A statement of the facts leading to the investigation,

Adm 84.17(2)(d)2. 2. Steps taken in the investigation,

Adm 84.17(2)(d)3. 3. Findings of the investigation, and

Adm 84.17(2)(d)4. 4. A conclusion which contains a recommendation for disposition of the matter.

Adm 84.17(3) (3) Notice of intent to decertify.

Adm 84.17(3)(a) (a) If the department determines that the business does not qualify as a minority business, it shall issue a notice of intent to decertify stating the reasons for decertification and offering the business the opportunity for an informal hearing under s. Adm 84.18.

Adm 84.17(3)(b) (b) The business shall have 30 days from the date of the department’s notification to submit a written request for an informal hearing.

Adm 84.17(3)(c) (c) If no request for an informal hearing is made, the administrator shall issue a final notice of decertification, stating the factual and legal grounds therefore and notifying the business of its appeal rights under ch. 227, Stats., and s. Adm 84.19.

Adm 84.17(3)(d) (d) The department shall send a copy of the notice of intent to decertify and a copy of the final notice of decertification to the affected business and to the departments of administration and transportation.

Adm 84.17 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (3) (d) made under s. 13.93 (2m) (b) 7., Stats., Register, November, 1994, No. 467; correction in (2) (c), (3) (a), (c) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.

Adm 84.18 Adm 84.18 Informal hearing procedure.

Adm 84.18(1) (1) Any business which has received a notice of intent to deny certification, to deny renewal of certification or to decertify, may submit a written request for an informal hearing. The request shall be received by the department within 30 days of the mailing date of the notification. The request shall set forth the grounds on which the business believes the decision is in error including any additional information which the business has to offer. The written request for an informal hearing shall be submitted to: Administrator, Division of Enterprise Operations, Department of Administration, P.O. Box 7867, Madison, WI 53707. A copy of the request shall be filed simultaneously with the program.

Adm 84.18(2) (2) The department shall schedule an informal hearing within 30 days of receipt of the request. Written notice of the scheduled hearing date shall be sent to all interested parties at least 10 days prior to the hearing date and shall specify the date, time and location of the hearing. Interested parties shall include all persons who signed the application for certification or certification renewal.

Adm 84.18(3) (3) The hearing shall be conducted on an informal basis.

Adm 84.18(4) (4) Within 30 days of receiving the request for a hearing, the administrator shall notify the business in writing of his or her final decision.

Adm 84.18(5) (5) If the final decision is to grant certification, the department shall immediately certify the business. If the final decision is to deny certification or certification renewal, or to decertify, the business shall be notified of the final decision and the reasons therefore. It shall also be notified of its appeal rights under ch. 227, Stats., and s. Adm 84.19.

Adm 84.18(6) (6) Once the department has made a final decision on certification, recertification or decertification, that determination goes into effect immediately. If a business that has been denied certification or recertification or has been decertified appeals the department’s decision, the department’s decision remains in effect until the decision is reversed as a result of the appeals process.

Adm 84.18 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1), (5) made under s. 13.92 (4) (b) 6., 7., Stats., Register December 2011 No. 672.

Adm 84.19 Adm 84.19 Appeal procedure.

Adm 84.19(1) (1) Any business which has been denied certification or certification renewal or which has been decertified may submit a written request for a formal hearing under ch. 227, Stats. The request shall be received by the department within 30 days of the mailing date of the administrator’s notification. The request shall set forth the grounds on which the business believes the decision is in error including any additional information which the business has to offer. The written request for a formal hearing shall be submitted to: Office of the Secretary, Department of Administration, P.O. Box 7864, Madison, WI 53707. A copy of the request shall be filed simultaneously with the program.

Adm 84.19(2) (2) The department shall schedule the formal hearing. Written notice of the scheduled hearing shall be sent to all interested parties at least 10 days prior to the hearing date, and shall specify the date, time and location of the hearing. Interested parties shall include all persons who signed the application for certification or certification renewal.

Adm 84.19(3) (3) The hearing shall be conducted pursuant to ch. 227, Stats. Both the business and the department shall have the right to present evidence, subpoena witnesses and records, and cross-examine witnesses. The firm and the department may be represented by counsel.

Adm 84.19(4) (4) At the conclusion of the hearing, the department shall issue a decision based on findings of fact and conclusions of law.

Adm 84.19(5) (5) The secretary may delegate the authority to make the final decision to the hearing examiner of another state agency. When this authority is delegated, the hearing examiner’s decision shall be the final administrative decision of the department.

Adm 84.19(6) (6) The department shall notify the affected business and the departments of administration and transportation of the final decision regarding renewal of certification or decertification.

Adm 84.19 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1) made under s. 13.92 (4) (b) 6., Stats., Register December 2011 No. 672.

Adm 84.20 Adm 84.20 Notification of changes in application information.

Adm 84.20(1) (1) A business must notify the program in writing of any change in the information contained in an application for certification or certification renewal within 30 days of the change or before bidding on a state contract, whichever is earlier.

Adm 84.20(2) (2) The department shall, within 15 days, send the business a written notification of its determination that either:

Adm 84.20(2)(a) (a) The change is not material and the certification of the business continues; or

Adm 84.20(2)(b) (b) The change is material and warrants a review of the status of the business.

Adm 84.20(3) (3) If the change warrants a review of the business’ status, the department shall conduct the review following the decertification procedures described in s. Adm 84.17.

Adm 84.20(4) (4) Failure by a business to notify the department of a change which would reduce minority ownership, control or management or change the business function performed may result in decertification and may result in the department forwarding pertinent information to the appropriate law enforcement authority for investigation and possible prosecution.

Adm 84.20 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1), (3) made under s. 13.92 (4) (b) 6., 7., Stats., Register December 2011 No. 672.

Adm 84.21 Adm 84.21 Certification of a minority business by another public agency or a private business.

Adm 84.21(1) (1) In this section, “private business” means a for-profit business or a non-profit organization.

Adm 84.21(2) (2) The department may waive some or all of the certification application requirements and procedures under s. Adm 84.14 for an applicant who is already certified by a state, federal or local agency or a private business if the department determines that the agency’s or business’s certification procedure is substantially equivalent to its own.

Adm 84.21(3) (3) In determining whether an agency’s or a private business’s certification procedure is substantially equivalent to its own, the department shall consider factors which include, but are not limited to, the following:

Adm 84.21(3)(a) (a) The documentation the applicant is required to provide;

Adm 84.21(3)(b) (b) Whether an on-site visit is performed; and

Adm 84.21(3)(c) (c) The length of time for which certification is effective.

Adm 84.21(4) (4) The department shall maintain a list of certification agencies and private businesses whose certification procedures meet the department’s standards.

Adm 84.21 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (2) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.

Adm 84.22 Adm 84.22 Certification criteria for non-Wisconsin businesses.

Adm 84.22(1) (1) The department may certify a non-Wisconsin business if it meets the eligibility standards under s. Adm 84.03, and if it meets either of the following 2 conditions:

Adm 84.22(1)(a) (a) Substantially equivalent program condition. The state in which the business is incorporated or has its principal place of business has a statutory minority business procurement program; Wisconsin minority firms would be allowed to participate in that program; and the business qualifies for participation in that program under a certification procedure which the department determines is substantially equivalent to its own certification procedure; or

Adm 84.22(1)(b) (b) Business capability condition. The department determines that, with respect to a particular product or service, there are not enough Wisconsin minority businesses to enable the state to meet the goals of its minority business procurement program.

Adm 84.22(2) (2) In determining whether an applicant meets the substantially equivalent program condition described in sub. (1) (a), the department shall consider:

Adm 84.22(2)(a) (a) Whether the state’s statutory minority business procurement program establishes specific goals, set-asides or preference criteria; whether it establishes a system for monitoring the program’s performance; and whether Wisconsin minority firms would be allowed to participate in the program; and

Adm 84.22(2)(b) (b) Whether the state’s minority business certification program meets the department’s standards and is included in the department’s list of certification agencies as described in s. Adm 84.21 (4). Applicants certified by states not on the list bear the burden of establishing to the department’s satisfaction that the agency’s certification procedures meet the department’s standards.

Adm 84.22(3) (3) In determining whether an applicant meets the business capability condition described in sub. (1) (b), the department shall consider:

Adm 84.22(3)(a) (a) The number of certified minority business enterprises which provide the specified supply, material, equipment or service and which are listed in the department’s Minority Business Directory.

Adm 84.22(3)(b) (b) The number of minority businesses which provide the specified supply, material, equipment or service and which are certified by another agency or a private business that is included on the department’s list of certification agencies and businesses as described in s. Adm 84.21 (4).

Adm 84.22(3)(c) (c) The assessment by the department of administration and other appropriate agencies of the capability of the existing certified minority businesses to achieve the state’s minority business procurement goals.

Adm 84.22(4) (4) The department may consult with minority associations, community organizations and other appropriate officials and organizations concerning the availability of minority businesses in the state and the potential to increase their participation in the state’s minority business procurement program.

Adm 84.22 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1) (intro.), (2) (b), (3) (b) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.

Adm 84.23 Adm 84.23 Certification procedure for non-Wisconsin businesses.

Adm 84.23(1) (1) For applicants certified by a state which the department determines meets the substantially equivalent program condition in s. Adm 84.22 (1) (a), the department may require the applicant to submit the following documentation:

Adm 84.23(1)(a) (a) A copy of the letter of certification from the state in which the applicant is incorporated or has its principal place of business;

Adm 84.23(1)(b) (b) A copy of the most recent application and supporting documentation the applicant submitted to its certifying state in support of its certification or certification renewal;

Adm 84.23(1)(c) (c) Documentation that the minority owner or owners meet the definition of minority as defined in s. Adm 84.02 (29).

Adm 84.23(1)(d) (d) The department may request the applicant to furnish additional information or documentation. The department may also request information from the certifying state, including a copy of the on-site visit report.

Adm 84.23(2) (2) For applicants who meet the business capability condition described in s. Adm 84.22 (1) (b), the department shall follow the certification procedures for Wisconsin businesses as described in s. Adm 84.14.

Adm 84.23(3) (3) An applicant who has received a notice of intent to deny certification shall be given the opportunity for an informal hearing under s. Adm 84.18 and shall have the right to appeal the final decision under ch. 227, Stats., and s. Adm 84.19.

Adm 84.23(4) (4) The department may charge the applicant a fee to cover departmental expenses in making the certification determination.

Adm 84.23 History History: Cr. Register, September, 1987, No. 381, eff. 10-1-87; correction in (1) (intro.), (c), (2), (3) made under s. 13.92 (4) (b) 7., Stats., Register December 2011 No. 672.

Adm 84.24 Adm 84.24 Certification criteria for for-profit corporations owned by a non-profit organization.

Adm 84.24(1) (1) The department may certify a for-profit corporation owned by a non-profit organization if the department determines that the non-profit organization is minority-controlled and managed. Factors which the department may consider in reaching this determination include, but are not limited to, the following:

Adm 84.24(1)(a) (a) At least 51% of the members who may elect the board of directors or trustees and who are entitled to vote on a dissolution of the non-profit organization are minorities;

Adm 84.24(1)(b) (b) At least 51% of the board of directors or trustees of the non-profit organization are minorities;

Adm 84.24(1)(c) (c) The minutes of the organization’s meetings document the active control and participation of the minority members of the board in such areas as setting and monitoring financial policy, personnel policy, and program policy;