Chapter 84

84.072(1)(b)1. 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).

84.072(1)(b)2. 2. Controlled in its management and daily business operations by one or more of the disadvantaged individuals who own the business.

84.072(1)(b)3. 3. A small business concern within the meaning given in 49 CFR 26.5.

84.072(1)(c) (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.

84.072(1)(d) (d) “Municipality” means a city, village, or town.

84.072(2) (2) Certification.

84.072(2)(a) (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.

84.072(2)(b) (b)

84.072(2)(b)1. 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.

84.072(2)(b)2. 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:

84.072(2)(b)2.a. a. Grant certification in reliance of the certification determination under the federally approved unified certification program.

84.072(2)(b)2.b. 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.

84.072(2)(b)2.c. c. Require the applicant to undergo the application process without regard to the other certification.

84.072(2)(b)3. 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.

84.072(2)(c) (c) A certifying authority shall cooperate with any directive from the federal government under authority of 49 CFR 26 concerning certification under this section.

84.072(2)(d) (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.

84.072(2)(e) (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.

84.072(2m) (2m) Confidentiality.

84.072(2m)(a) (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.

84.072(2m)(b) (b) This subsection does not prohibit a certifying authority from disclosing information to any of the following persons:

84.072(2m)(b)1. 1. The person to whom the information relates.

84.072(2m)(b)2. 2. If the certifying authority is a municipality or county, to the department.

84.072(2m)(b)3. 3. If the certifying authority is the department, to a municipality or county authorized under sub. (5m).

84.072(2m)(b)4. 4. Any person who has the written consent of the person to whom the information relates to receive such information.

84.072(2m)(b)5. 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.

84.072(2m)(b)6. 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.

84.072(3) (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.

84.072(4) (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.

84.072(5) (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.

84.072(5m) (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.

84.072(6) (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.

84.072(7) (7) Certification appeals and complaints.

84.072(7)(a) (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.

84.072(7)(b) (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.

84.072(8) (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.

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

84.075 84.075 Contracting with minority businesses and disabled veteran-owned businesses.

84.075(1c) (1c) In this section:

84.075(1c)(a) (a) “Disabled veteran-owned business” means a business certified by the department of administration under s. 16.283 (3).

84.075(1c)(b) (b) “Minority business” means a business certified by the department of administration under s. 16.287 (2).

84.075(1m) (1m) 

84.075(1m)(a) (a) In purchasing services under s. 84.01 (13), in awarding construction contracts under s. 84.06 and in contracting with private contractors and agencies under s. 84.07, the department shall attempt to ensure that 5 percent of the total amount expended in each fiscal year is paid to contractors, subcontractors, and vendors that are minority businesses. In attempting to meet this goal, the department may award any contract to a minority business that submits a qualified responsible bid that is no more than 5 percent higher than the low bid.

84.075(1m)(b) (b) In purchasing services under s. 84.01 (13), in awarding construction contracts under s. 84.06, and in contracting with private contractors and agencies under s. 84.07, the department shall attempt to ensure that at least 1 percent of the total amount expended in each fiscal year is paid to contractors, subcontractors, and vendors that are disabled veteran-owned businesses. In attempting to meet this goal, the department may award any contract to a disabled veteran-owned business that submits a qualified responsible bid that is no more than 5 percent higher than the low bid unless doing so would violate the provisions of any federal law or regulation or any contract between the department and a federal agency or would otherwise result in a reduction of the amount of federal highway aid received by this state.

84.075(1m)(c) (c) If a contractor, subcontractor, or vendor is both a minority business and a disabled veteran-owned business, the department may award a contract under par. (a) or (b) but the qualified responsible bid must be no more than 5 percent higher than the low bid, as provided under pars. (a) and (b).

84.075(2) (2) The contractor shall report to the department any amount of the contract paid to subcontractors and vendors which are minority businesses or disabled veteran-owned businesses.

84.075(3) (3) The department shall at least semiannually, or more often if required by the department of administration, report to the department of administration the total amount of money it has paid to contractors, subcontractors, and vendors that are minority businesses and that are disabled veteran-owned businesses under ss. 84.01 (13), 84.06, and 84.07 and the number of contacts with minority businesses and disabled veteran-owned businesses in connection with proposed purchases and contracts. In its reports, the department shall include only amounts paid to businesses certified by the department of administration as minority businesses or disabled veteran-owned businesses.

84.075 History History: 1983 a. 27; 1983 a. 390 ss. 4, 6; 1987 a. 27; 2009 a. 299; 2011 a. 32; 2011 a. 260 s. 80; 2013 a. 192; 2021 a. 239.

84.076 84.076 Disadvantaged business demonstration and training program.

84.076(1) (1) Definitions. In this section:

84.076(1)(a) (a) “Disadvantaged individual” means a minority group member, a woman or any other individual found by the department to be socially and economically disadvantaged within the meaning given in 49 CFR 26.5, unless successfully challenged as provided in 49 CFR 26.89.

84.076(1)(b) (b) “Disadvantaged business” has the meaning given in s. 84.072 (1) (b).

84.076(1)(c) (c) “Minority business” has the meaning given under s. 16.287 (1) (e).

84.076(1)(d) (d) “Minority group member” has the meaning given under s. 16.287 (1) (f).

84.076(2) (2) Administration.

84.076(2)(a) (a) The secretary shall administer a demonstration and training program for the purpose of developing the capability of disadvantaged businesses to participate in construction projects funded under s. 20.395 (3) (bq), (bv), (bx), (cq), (cv), (cx), (eq), (ev) and (ex). From the amounts appropriated under those paragraphs, the secretary shall allocate $4,000,000 each fiscal year for the awarding of contracts under this section. The secretary shall attempt to ensure that 75 percent of the amount so allocated each fiscal year is for the awarding of contracts under this section to minority businesses. The secretary may award 100 percent of the amount so allocated each fiscal year to one disadvantaged business.

84.076(2)(b) (b) The secretary shall establish requirements for programs of preapprenticeship training and management and technical assistance designed to develop the expertise of disadvantaged individuals and disadvantaged businesses in transportation construction.

84.076(3) (3) Bids, contracts. Section 84.06 (2) applies to bids and contracts under this section, except that the secretary shall reject low bids that do not satisfy the requirements under sub. (4). Each bid submitted under this section shall include the agreement specified under sub. (4) and, as a condition, a goal that at least 25 percent of the total number of workers in all construction trades employed on the project will be disadvantaged individuals.

84.076(4) (4) Contractor responsibilities. Each contractor shall agree to do one of the following in its bid submitted under sub. (3):

84.076(4)(a) (a)

84.076(4)(a)1. 1. Assure that the contractor has developed a program of preapprenticeship training that satisfies the requirements established by the secretary under sub. (2) (b) and has experience in providing the training to disadvantaged individuals; and

84.076(4)(a)2. 2. Assure that the contractor has developed and has experience in providing a program of management and technical assistance to disadvantaged business subcontractors. The management and technical assistance program shall satisfy the requirements established by the secretary under sub. (2) (b) and shall include all of the following:

84.076(4)(a)2.a. a. On-site administrative support.

84.076(4)(a)2.b. b. Assistance with managing scheduling, finances and property.

84.076(4)(a)2.c. c. The provision of other management services necessary to assist disadvantaged businesses in developing construction capabilities and opportunities for participation in construction projects.

84.076(4)(b) (b) Obtain from a subcontractor that has experience in providing training to disadvantaged individuals a program of preapprenticeship training that satisfies the requirements established by the secretary under sub. (2) (b), and assure that the subcontractor has experience in providing a program of management and technical assistance to disadvantaged business contractors, and that the subcontractor’s management and technical assistance program satisfies the requirements established by the secretary under sub. (2) (b) and includes all of the requirements of par. (a) 2. A subcontractor under this paragraph need not be a disadvantaged business, but if the subcontractor is not a disadvantaged business, it may not be included within the goal established under sub. (3).

84.076(5) (5) Sunset. This section does not apply after the later of the following:

84.076(5)(a) (a) September 30, 1997.

84.076(5)(b) (b) The date on which federal law does not require, as a condition of using federal funds, that this state establish goals for the participation of disadvantaged businesses or the employment of disadvantaged individuals in projects using federal funds.

84.076 History History: 1987 a. 399; 1989 a. 31; 1991 a. 39; 1993 a. 112; 1995 a. 113; 1997 a. 27; 2001 a. 16; 2011 a. 32; 2021 a. 239 s. 73.

84.076 Annotation This section is unconstitutional as applied to goals for disadvantaged business subcontractor participation in exclusively state-funded projects but is constitutional as applied to federally-funded projects. Milwaukee County Pavers Ass’n v. Fiedler, 731 F. Supp. 1395 (1990).

84.078 84.078 Use of recovered material.

84.078(1) (1) In this section:

84.078(1)(am) (am) “High-volume industrial waste” means fly ash, bottom ash, paper mill sludge or foundry process waste, or any other waste with similar characteristics specified by the department of natural resources by rule.

84.078(1)(ar) (ar) “Highway improvement” has the meaning given in s. 84.06 (1).

84.078(1)(bc) (bc) “Operator” has the meaning given in s. 292.31 (8) (a) 1.

84.078(1)(be) (be) “Owner” has the meaning given in s. 292.31 (8) (a) 2.

84.078(1)(bg) (bg) “Person” means an individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or an officer or agent of a state agency, federal agency, department or instrumentality.

84.078(1)(bm) (bm) “Recovered material” means a material that is recovered or derived from solid waste.

84.078(2) (2) The department shall use or encourage the use of the maximum possible amount of recovered material, including glass, wastepaper, pavement and high-volume industrial waste as surfacing material, structural material, landscaping material and fill for all highway improvements, consistent with standard engineering practices. The department shall specify the proportion of recovered material that may be used in various types of highway improvements.

84.078(3) (3) 

84.078(3)(a) (a) Notwithstanding chs. 160, 281 to 285 and 289 to 299, no person is required to take or pay for any remedial or corrective action as a result of environmental pollution resulting from the use of high-volume industrial waste in a highway improvement project if all of the following apply:

84.078(3)(a)1. 1. The high-volume industrial waste is incorporated into the highway improvement in accordance with the policies, guidelines and rules applicable to the highway improvement at the time of the design of the improvement and at the time of certification under subd. 2.

84.078(3)(a)2. 2. The department of natural resources certifies to the department of transportation, before the time that the department of transportation advertises for bids for the improvement, that the high-volume industrial waste intended to be used and the design for the use of the high-volume industrial waste comply with all applicable state requirements or standards administered by the department of natural resources.

84.078(3)(b) (b) The exemption under par. (a) extends to the transportation of high-volume industrial waste to or from the site of a highway improvement and to the storage of high-volume industrial waste at the site of a highway improvement. The exemption provided under par. (a) continues to apply after the date of certification by the department of natural resources under par. (a) 2., notwithstanding the occurrence of any of the following:

84.078(3)(b)1. 1. Statutes or rules are amended that would impose greater responsibilities on the department of transportation.

84.078(3)(b)2. 2. Alterations due to construction, maintenance, utility installation or other activities by the department of transportation or approved by the department of transportation after the completion of the highway improvement affect the high-volume industrial waste at the site of the highway improvement.

84.078(3)(c) (c) The department of transportation and the department of natural resources may enter into agreements establishing standard lists of high-volume industrial waste that may be used in highway improvements and designs for the use of high-volume industrial waste in highway improvements that comply with rules of the department of natural resources applicable at the time of the design of the highway improvement in order to simplify certification under par. (a) 2. to the greatest extent possible.

84.078(3)(d) (d)

84.078(3)(d)1. 1. Except as provided in subd. 3., no state agency may commence an action or proceeding under federal law to require remedial action or to recover the costs of remedying environmental pollution related to the use of high-volume industrial waste in a highway improvement certified under par. (a) 2.