84.072 Unified disadvantaged business certification program.

(1) Definitions. In this section:

(a) “Business" means a sole proprietorship, partnership, limited liability company, joint venture, or corporation that is operated for profit.

(am) “Certifying authority" means the department or, if authorized under sub. (5m), a municipality or county.

(b) “Disadvantaged business" means a business that is all of the following:

1. At least 51 percent owned by one or more disadvantaged individuals who are U.S. citizens or persons lawfully admitted to the United States for permanent residence, as defined in 8 USC 1101 (a) (20).

2. Controlled in its management and daily business operations by one or more of the disadvantaged individuals who own the business.

3. A small business concern within the meaning given in 49 CFR 26.5.

(c) “Disadvantaged individual" means an individual found by a certifying authority to be socially and economically disadvantaged within the meaning given in 49 CFR 26.5.

(d) “Municipality" means a city, village, or town.

(2) Certification.

(a) Any business may apply to a certifying authority for certification as a disadvantaged business. All applications shall be sworn and notarized. A certifying authority shall certify as a disadvantaged business any business that meets the requirements under 49 CFR 26, subpart D, for such certification. A certifying authority shall follow all certification procedures and standards provided in 49 CFR 26 and all certification determinations shall strictly conform with 49 CFR 26 and federal guidelines established under that section. A certifying authority shall complete review and issue a decision concerning an application within 90 days after receiving the completed application, except that a certifying authority may extend its review period to not more than 150 days if, within those 90 days, the certifying authority provides written notice to the applicant specifying the reasons for the extension. No person may certify a business as a disadvantaged business for purposes of 49 CFR 26, except as provided in this section. A certifying authority may charge and collect reasonable fees for reviewing an application submitted under this paragraph.

(b)

1. Except as provided in sub. (6), a certifying authority is not required to review an application submitted by a business that has its principal place of business in another state, unless the business is certified as a disadvantaged business under a unified certification program that strictly conforms to 49 CFR 26 and to which that other state is a party.

2. If the department receives an application for a business that is certified as a disadvantaged business under a federally approved unified certification program pursuant to 49 CFR 26, the department may do any of the following:

a. Grant certification in reliance of the certification determination under the federally approved unified certification program.

b. Make an independent certification determination based on material submitted by the other certifying agency, supplemented by whatever additional information the department may request from the applicant.

c. Require the applicant to undergo the application process without regard to the other certification.

3. If a certifying authority that is a municipality or county receives an application for a business that is certified as a disadvantaged business under a federally approved unified certification program pursuant to 49 CFR 26, the certifying authority shall forward the application to the department for purposes of subd. 2.

(c) A certifying authority shall cooperate with any directive from the federal government under authority of 49 CFR 26 concerning certification under this section.

(d) Certification under this section is valid for 3 years, unless the department removes certification under sub. (4) or the certification is removed as provided in 49 CFR 26.87 or 26.89. A certifying authority may not require a business that is certified under this section to reapply during the 3-year period after its certification, unless the factual basis on which the certification is made materially changes.

(e) No certification of a business as a disadvantaged business for purposes of federal transportation assistance programs before September 1, 2001, is valid for contracts executed after February 28, 2002. Beginning on March 1, 2002, only a business certified under this section qualifies as a disadvantaged business enterprise for purposes of 49 CFR 26.

(2m) Confidentiality.

(a) A certifying authority may not disclose to any person any information that relates to an individual's statement of net worth, a statement of experience, or a company's financial statement, including the gross receipts of a bidder, or to any documentation submitted in support of those statements, if the information was obtained for the purpose of complying with 49 CFR 26, as that section existed on October 1, 1999.

(b) This subsection does not prohibit a certifying authority from disclosing information to any of the following persons:

1. The person to whom the information relates.

2. If the certifying authority is a municipality or county, to the department.

3. If the certifying authority is the department, to a municipality or county authorized under sub. (5m).

4. Any person who has the written consent of the person to whom the information relates to receive such information.

5. Any person to whom 49 CFR 26, as that section existed on October 1, 1999, requires or specifically authorizes the certifying authority to disclose such information.

6. The federal department of transportation, if the certifying authority discloses the information for the purposes of a certification appeal proceeding in which the disadvantaged status of the individual is in question.

(3) Implied consent. Any municipality, county, or other person, including the Wisconsin Aerospace Authority created under subch. II of ch. 114, that accepts federal moneys from the appropriations under s. 20.395 (1) (bx), (2) (ax), (dx), (fx), or (mx), or (3) (bx), (cx), or (ex), or accepts other federal moneys for highway, transit, airport, or spaceport purposes, after September 1, 2001, is considered to have given consent to the unified certification disadvantage business program administered under this section.

(4) Requirements of certified businesses. A business certified as a disadvantaged business shall, within 30 days after a change in the business's size, disadvantaged status, ownership, or control that could preclude its certification as a disadvantaged business under 49 CFR 26, notify the department of that change by sworn and notarized statement. A business certified as a disadvantaged business shall submit annually to the department a sworn, notarized statement attesting that there have been no changes to the business's size, disadvantaged status, ownership or control, or its gross receipts, that would preclude its certification as a disadvantaged business under 49 CFR 26. The notice shall include a statement that the business meets the size and gross receipts criteria for certification and shall include documentary evidence supporting that statement. The department shall remove the certification of any disadvantaged business that fails to provide the statement within 13 months after certification under this section, or within 13 months after it last submitted to the department the information required under this subsection, whichever is later.

(5) Directory of certified businesses. The department shall maintain a list of all businesses certified as a disadvantaged business by a certifying authority or by a state that is a party to an agreement under sub. (6). The list shall include the business name, address, telephone number, and types of work that the business is certified to perform as a disadvantaged business. The department shall make the list and any updated information available to any person, at no charge, on the Internet and in printed format. The department shall update the list at least annually, but shall update the electronic list available on the Internet by including additions, deletions, or other changes to the list as soon as the department makes such an addition, deletion, or other change.

(5m) Certification by a municipality or county. The department may authorize any municipality or county to certify a business as a disadvantaged business. The authorization shall be in writing and shall require the municipality or county to conform strictly to the standards and processes provided in this section and rules promulgated under this section. The authorization shall be valid for one year. The authorization shall require the municipality or county to provide written notice to the department of any certification decision. The written notice shall include all of the information contained in the directory maintained under sub. (5). The authorization shall require the municipality or county to forward applications to the department under sub. (2) (b) 3. Certification by a municipality or county is valid for 3 years, unless the department removes certification under sub. (4) or the certification is removed as provided in 49 CFR 26.87 or 26.89. No municipality or county authorized under this subsection may hear any appeals or complaints regarding certification decisions.

(6) Reciprocal certification agreements. Notwithstanding sub. (2) (a), the department may enter into a reciprocal agreement with any other state establishing a joint unified certification program that strictly conforms to 49 CFR 26. The agreement may authorize the other state to certify as a disadvantaged business any business that is based in this state, or may authorize the department to certify as a disadvantaged business any business based in that other state.

(7) Certification appeals and complaints.

(a) Any business whose application for certification is denied, or is not reviewed within the time limits prescribed in sub. (2) (a), or whose certification is removed, may appeal that action as provided in 49 CFR 26.89 to the department.

(b) Any person may file with the department a signed, written complaint that a business that a certifying authority has certified under this section is not eligible for such certification. The department shall investigate complaints that it finds are supported by credible evidence. If, upon investigation, the department finds reasonable cause to believe that a business is not eligible for certification, the department shall notify the business of its findings in writing and shall proceed in the manner provided under 49 CFR 26.87.

(8) Applicability. This section does not apply if federal law does not require, as a condition of using federal funds, this state to establish goals for the participation of disadvantaged businesses or the employment of disadvantaged individuals in projects using federal funds.

History: 2001 a. 16, 104; 2005 a. 335.