Section DWD 294.05 - Debarment(1) GENERAL. (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.(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.(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.(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.(2) CAUSES FOR DEBARMENT. The department may debar a contractor for any one or more of the following causes: (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: 1. Failing to pay an employe the proper prevailing wage rate determined for a public works project.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.3. Inducing any employe to give up, waive or return any part of the proper prevailing wage rate determined for a public works project.4. Falsifying, deliberately destroying, or failing to keep required payroll records on a public works project.(3) PROCEDURES FOR DEBARMENT. (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.(b)Decision-making process.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.2. The hearing shall be conducted by a designated representative and shall: 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; andb. 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.(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: (a) The department is considering a debarment;(b) The causes for the proposed debarment in terms sufficient to inform the contractor of the conduct or transaction upon which debarment is proposed;(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;(d) The department's procedures governing debarment decision-making as specified in sub. (5);(e) The potential effect of the proposed debarment as provided under s. DWD 294.04; and(f) The contractor may request a hearing before the department within the period provided for in par. (c).(5) DEPARTMENT'S DEBARMENT DECISION. (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.(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.(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.(6) NOTICE OF DEBARMENT DECISION. (a) If a debarment is imposed, the department shall promptly notify the contractor by certified mail to its last known address, of the following:1. Reference to the notice of proposed debarment that initiated the action under sub. (4);2. Reasons for debarment; and3. Period of debarment, specifying the effective and termination dates.(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.(7) PERIOD OF DEBARMENT. (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.(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: 1. Newly discovered relevant evidence;2. Reversal of the conviction or judgment upon which the debarment was based;3. A bona fide change in ownership or management of the contractor; or4. Elimination of the cause or causes for which the debarment was imposed.(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.Wis. Admin. Code Department of Workforce Development § DWD 294.05
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.Amended by, Register June 2017 No. 738, eff. 7/1/2017.