Wis. Admin. Code Department of Transportation Trans 504.06 - Suspension

(1) GENERAL.

(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).

(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.

(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.

(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.

(2) CAUSES FOR SUSPENSION.

(a) The department may suspend a contractor whenever it finds adequate evidence that the contractor has engaged in one or more of the following:

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

2. Violation of any federal or state antitrust statute relating to the submission of bids or proposals;

3. Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property or obstruction of justice; or

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.

(b) An indictment for any of the causes set forth in par. (a) may constitute adequate evidence for suspension.

(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.

(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).

(3) PROCEDURES FOR SUSPENSION.

(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.

(b) Decision-making process.

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.

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:

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;

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

c. Act in accord with and have the authority provided by s. 227.46, Stats.

(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:

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.

2. The suspension is temporary pending the completion of an investigation and of whatever legal proceedings may follow.

3. The effect of the suspension as provided for under s. Trans 504.04(1).

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.

5. A fact-finding hearing to determine disputed relevant facts shall be conducted under par. (b), unless:

a. The suspension is based upon an indictment or upon a suspension or debarment imposed by another state or federal entity; or

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.

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.

(d) Department's suspension decision.

1. In suspension actions based upon an indictment or a suspension by another state or federal entity for any of the causes enumerated in sub. (2), in suspension actions in which no dispute exists over facts relevant to the suspension or in suspension actions in which a fact-finding hearing to determine disputed relevant facts is denied on the basis of advice from the department of justice or other prosecuting official, the secretary shall make a decision based upon the information in the administrative record, including any submission made by the affected contractor. The suspension decision shall be made within 30 days after the secretary receives the last written response providing information or argument in opposition to the proposed suspension as provided in par. (c) 4.

2. In suspension actions in which a fact-finding hearing is necessary under par. (b) 2., the designated hearing examiner shall prepare written findings of fact, and the secretary or designee shall render a decision based upon those written findings of fact. The suspension decision shall be made as soon as can reasonably be done after the conclusion of the proceedings with respect to the disputed facts.

3. The department may modify, terminate or leave in effect a suspension for the reasons set forth in s. Trans 504.05(7) (c) for modifying or terminating a debarment.

4. A prompt written notice of the department's decision shall be sent to the contractor by certified mail return receipt requested.

(4) PERIOD OF SUSPENSION.

(a) Suspension shall be for a temporary period pending completion of investigation and any following legal proceedings unless sooner terminated by the department or as provided in par.

(b).

(b) A suspension shall not continue for more than 6 months from its effective date, unless civil or criminal action regarding the violation or debarment proceedings have been initiated. The suspension may continue until the legal proceedings or debarment proceedings are completed.

(5) SCOPE OF SUSPENSION. The scope of suspension shall be the same as that set forth for debarment in s. Trans 504.05(8).

Notes

Wis. Admin. Code Department of Transportation Trans 504.06

Cr. Register, December, 1983, No. 336, eff. 1-1-84; correction in (3) (b) 2. c. made under s. 13.92(4) (b) 7, Stats., Register March 2012 No. 675