Title 326 WAC — Minority and Women's Business Enterprises, Office of

Chapter 326-02 General provisions.

Wash. Admin. Code § 326-02-010 Purpose.

The purpose and intent of chapter 120, Laws of 1983, and of Title 326 WAC is to provide the maximum practicable opportunity for increased participation by minority, women, and socially and economically disadvantaged-owned and controlled businesses in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector. This purpose will be accomplished by encouraging the full use of existing minority, women, and socially and economically disadvantaged-owned and controlled businesses and the entry of new and diversified minority, women, and socially and economically disadvantaged-owned and controlled businesses into the marketplace. These rules shall be applied and interpreted to promote this purpose.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-02-010, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-010, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-02-010, filed 10/28/83.

Wash. Admin. Code § 326-02-020 Applicability.

Title 326 WAC applies to all applications for certification, the linked deposit program, and to all public works and procurement by state agencies and educational institutions: Provided, That this title does not apply where it is found to be in conflict with federal requirements which are a prescribed condition to the allocation of federal funds to the state. In such a case, the conflicting portions of this chapter are inoperative solely to the extent of the conflict and with respect to the agencies directly affected.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-02-020, filed 1/22/08, effective 2/22/08. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-020, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-02-020, filed 10/28/83.

Wash. Admin. Code § 326-02-030 Definitions.

Words and terms used in this title have the same meaning as each has under chapter 43.19 RCW, unless otherwise specifically provided in this title, or the context in which they are used clearly indicates another meaning.

(1) "Advisory committee" means the advisory committee for the office of minority and women's business enterprises.

(2) "Affiliation" has the same meaning as the Small Business Administration (SBA) regulations, 13 C.F.R. Part 121. Except as otherwise provided in 13 C.F.R. Part 121, concerns are affiliates of each other when, either directly or indirectly:

(a) One concern controls or has the power to control the other;

(b) A third party or parties controls or has the power to control both; or

(c) An identity of interest between or among parties exists such that affiliation may be found.

(3) "Alaska native corporation" means any regional corporation, village corporation, urban corporation, or group corporation organized under the laws of the state of Alaska in accordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.).

(4) "Assets" means all the property of a person available for paying debts or for distribution, including the person's respective share of jointly held assets. This includes, but is not limited to, cash on hand and in banks, savings accounts, IRA or other retirement accounts, accounts receivable, life insurance, stocks and bonds, real estate, and personal property.

(5) "Broker" means a person who provides a bona fide service, such as professional, technical, consultant, brokerage, or managerial services and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of a contract.

(6) "Certified business" means a for profit business that has been approved for certification by the Washington state office of minority and women's business enterprises. Businesses certified through the agency's state program include: A minority business enterprise (MBE), a women's business enterprise (WBE), a minority woman's business enterprise (MWBE), a combination business enterprise (CBE), and a socially and economically disadvantaged business enterprise (SEDBE).

(7) "Class of contract basis" means an entire group of contracts having a common characteristic. Examples include, but are not limited to, personal service contracts, public works contracts, leases, purchasing contracts, and contracts for specific types of goods and/or services.

(8) "Commercially useful function" means the performance of real and actual services that are integral and necessary in the discharge of any contractual endeavor, and not solely for the purpose of obtaining certification or obtaining credit for participation goal attainment.

(9) "Common industry practices" means those usages, customs, or practices which are ordinary, normal, or prevalent among businesses, trades, or industries of similar types engaged in similar work in similar situations in the community.

(10) "Conduit" means a certified business which agrees to be named as a subcontractor on a contract in which such certified business does not perform the work but, rather, the work is performed by the prime contractor, prime consultant, material supplier, purchasing contractor, or any other noncertified business.

(11) "Contingent liability" means a liability that depends on the occurrence of a future and uncertain event. This includes, but is not limited to, guaranty for debts owed by the applicant concern, legal claims and judgments, and provisions for federal income tax.

(12) "Days" means calendar days. In computing any period of time described in this chapter, the day from which the period begins to run is not counted. When the last day of the period is a Saturday, Sunday, or a legal holiday, the period extends to the next day that is not a Saturday, Sunday, or legal holiday. Similarly, in circumstances where the agency is closed for all or part of the last day, the period extends to the next day on which the agency is open.

(13) "Director" means the director of the office of minority and women's business enterprises.

(14) "Educational institutions" means the state universities, the regional universities, The Evergreen State College, and the community colleges.

(15) "Front" means a business which purports to be eligible for certification but is not in fact legitimately owned and controlled by minorities, women, socially and economically disadvantaged individuals, or a combination thereof.

(16) "Graduation" means the business is no longer certified because it is no longer a small business concern.

(17) "Immediate family member" means father, mother, son, daughter, brother, sister, grandfather, grandmother, father-in-law, mother-in-law, sister-in-law, brother-in-law, spouse, and registered domestic partner.

(18) "Joint venture" means an association of a certified firm and one or more other firms to carry out a single, for-profit business enterprise, for which the parties combine their property, capital, efforts, skills and knowledge, and in which the certified firm is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the capital contribution, control, management, risks, and profits of the joint venture are commensurate with its ownership interest.

(19) "Liabilities" means financial obligations including, but not limited to, accounts payable, notes payable to a bank or others, installment accounts, mortgages on real estate, and unpaid taxes.

(20) "Native Hawaiian organization" means any community service organization serving native Hawaiians in the state of Hawaii which is a not-for-profit organization chartered by the state of Hawaii, is controlled by native Hawaiians, and whose business activities will principally benefit such native Hawaiians.

(21) "Office" means the Washington state office of minority and women's business enterprises.

(22) "Pass-through" means a certified business that buys goods from a noncertified business and simply resells those goods to the state, state contractors, or other persons doing business with the state for the purpose of allowing those goods to be counted towards fulfillment of goals for participation of certified firms.

(23) "Personal net worth" means the net value of the assets of an individual remaining after total liabilities are deducted. An individual's personal net worth does not include: The individual's ownership interest in an applicant or participating firm; or the individual's equity in his or her primary place of residence. An individual's personal net worth includes only his or her own share of assets held jointly or as community property with the individual's spouse/domestic partner.

(24) "Small Business Administration" or "SBA" means the United States Small Business Administration.

(25) "Small business concern" means a small business concern as defined under section 3 of the Small Business Act and 13 C.F.R. Part 121 that also does not exceed the cap on average annual gross receipts specified in WAC 326-20-092.

(26) "Socially disadvantaged individual" means the following for the purposes of certification, consistent with 49 C.F.R. Sec. 26.5:

(a) A person who has been subjected to racial or ethnic prejudice or cultural bias within American society because of his or her identity as a member of groups and without regard to his or her individual qualities. The social disadvantage must stem from circumstances beyond the individual's control.

(b) Any individual who the agency finds to be a socially disadvantaged individual on a case-by-case basis, per chapter 326-20 WAC.

(c) Any individual in the following groups, members of whom are rebuttably presumed to be socially disadvantaged for the purposes of certification, consistent with 49 C.F.R. Sec. 26.5:

(i) Persons who are Asian or Pacific islander: Person whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Guam, the Republic of Palau, the Federated States of Micronesia, and the Republic of Marshall Islands, Commonwealth of the Northern Mariana Islands, Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, Nauru, Hong Kong, India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka;

(ii) Persons who are black/African American: Persons having origins in any of the black racial groups of Africa;

(iii) Persons who are Hispanic/Latino: Persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;

(iv) Persons who are Native American or Alaska native: Persons who are members or descendants of a federal or state recognized Indian tribe or Alaska native corporation;

(v) Persons who are native Hawaiian: Persons whose ancestors were natives, prior to 1778, of the area which now comprises the state of Hawaii;

(vi) Women; and

(vii) Any additional groups whose members are designated as socially and economically disadvantaged by the U.S. Small Business Administration (SBA), at such time as the SBA designation becomes effective.

(27) "State agency" includes the state of Washington and all agencies, departments, offices, divisions, boards, commissions, and correctional and other types of institutions. "State agency" does not include the judicial or legislative branches of government except to the extent that procurement or public works for these branches is performed by a state agency.

(28) "Switch business" means a business that was previously owned and controlled by an individual(s) who is not socially and economically disadvantaged, that has made technical changes to its business structure so that it is now purportedly owned and controlled by a person(s) who is socially and economically disadvantaged, but continues to operate in substantially the same manner as it did prior to the written revisions of the business structure.

(29) "Tribally owned concern" means any small business concern at least fifty-one percent owned by an Indian tribe as defined in this section.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-02-030, filed 6/7/19, effective 7/8/19
• WSR 04-08-093, § 326-02-030, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 96-24-085, § 326-02-030, filed 12/3/96, effective 1/3/97. Statutory Authority: RCW 39.19.030. WSR 94-11-116, § 326-02-030, filed 5/18/94, effective 6/18/94. Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-02-030, filed 12/2/92, effective 1/2/93
• WSR 92-11-007, § 326-02-030, filed 5/11/92, effective 6/11/92
• WSR 89-24-047, § 326-02-030, filed 12/1/89, effective 1/1/90. Statutory Authority: Chapter 39.19 RCW. WSR 88-12-060 (Order 88-5), § 326-02-030, filed 5/31/88
• WSR 88-08-031 (Order 88-4), § 326-02-030, filed 4/1/88
• WSR 87-18-030 (Order 87-6), § 326-02-030, filed 8/27/87
• WSR 86-17-018 (Order 86-2), § 326-02-030, filed 8/11/86
• WSR 85-14-101 (Order 85-6), § 326-02-030, filed 7/2/85
• WSR 84-09-002 (Order 84-5), § 326-02-030, filed 4/5/84. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-02-030, filed 10/28/83.

Wash. Admin. Code § 326-02-031 Office of minority and women's business enterprises account—Created—Purpose.

The office of minority and women's business enterprises account is created in the custody of the state treasurer for the purpose of defraying costs of the office in administering chapter 39.19 RCW. Only the director or the director's designee may authorize expenditures from the account. Money in the account may be spent only after appropriation. The revolving fund account is subject to the allotment procedures provided under chapter 43.88 RCW. The director of the office of financial management shall prescribe appropriate accounting procedures to accurately record payments to the fund from businesses, state agencies and educational institutions, and political subdivisions and expenditures from the fund.

History

• Statutory Authority: 1993 c 195. WSR 93-16-080, § 326-02-031, filed 8/3/93, effective 9/3/93.

Wash. Admin. Code § 326-02-033 State agency and educational institution fees.

The office shall charge a fee to each state agency and educational institution to assist in the support of the state's minority and women's business enterprise program. The fee will be apportioned according to the state agency and educational institution's expenditure level of funds which are subject to chapter 39.19 RCW and Title 326 WAC.

State agency and educational institution's charges that are five-hundred dollars or less will be billed once in a biennium. Charges over five hundred dollars will be billed at least yearly to limit administrative expenditures. The office will submit invoices to state agencies and educational institutions and payments will be due on or before July 15 unless, the state agency or educational institution is billed more frequently than yearly.

History

• Statutory Authority: 1993 c 195. WSR 93-16-080, § 326-02-033, filed 8/3/93, effective 9/3/93.

Wash. Admin. Code § 326-02-034 Political subdivision fees.

(1) It is the intent of the state legislature that political subdivisions within the state of Washington contribute to the costs of the state's certification program for minority and women's business enterprises. For the purpose of this section, political subdivisions means any city, town, county, special purpose district, public corporation created by the state, municipal corporation, or quasi-municipal corporation within the state of Washington that administers a policy or program, or funds from whatever source, which requires or encourages the use of certified minority, women, or disadvantaged business enterprises.

(2) Effective July 1, 1993, the office shall allocate a portion of its biennial operational costs to political subdivisions. Each political subdivision shall pay a proportionate share of this allocation based on the formula set forth in subsection (4) of this section.

(3)(a) The fee charged to each political subdivision for the biennium beginning July 1, 2023, and subsequent biennia unless revised by rule, shall be based on the annual average of expenditures for capital projects, supplies and other services for the most recent available biennium as reported by the state auditor's office. Data on the annual average of expenditures by school districts and educational service districts will be obtained from the office of the superintendent of public instruction. The basis for the fee to be charged to the Housing Authorities is the number of low-income units owned or managed during the last fiscal year as reported to the U.S. Department of Housing and Urban Development. The maximum amount charged to any political subdivision must not exceed $60,000 in the biennium beginning July 1, 2023. In subsequent biennia, the maximum amount charged must be adjusted for inflation as measured in the implicit price deflator index.

(b) When insufficient data is available to calculate the average expenditures from the sources listed in (a) of this subsection, the office may either use other sources for the data or estimate the amount of relevant expenditures. In either event, the office shall allow the affected political subdivisions to offer alternative data on which to base its calculation. New political subdivisions will be charged based on the office's estimate of the annual average of relevant expenditures by the entity for the current biennium.

(c) After paying the fee, the political subdivisions may challenge the office about the accuracy of the data used to calculate the fee under (a) of this subsection. Upon verification by the state auditor, the fee may be revised and refund issued or additional fee assessed.

(d) Following the initial billing in each biennium, which will include the total amount due for the biennium beginning July 1, 2003, the office will mail invoices on a quarterly basis one month before the start of each quarter for the outstanding balance at that time. Payments shall be due within 30 calendar days after receipt of the invoice.

(4)(a) The following formula will be used to calculate the fees:

The political subdivision's average annual expenditures multiplied by 0.00006.

(b) The fee to Housing Authorities will be one dollar per low-income unit owned or managed during the last fiscal year.

(5) The office shall develop a policy and procedure for collection of any invoice that is not paid within 30 calendar days. The office shall distribute the collection policy and procedure to all political subdivisions along with the initial and quarterly billings.

History

• Statutory Authority: RCW 39.19.030 and 39.19.220. WSR 23-11-085, § 326-02-034, filed 5/17/23, effective 6/17/23. Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-02-034, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.220. WSR 04-13-032, § 326-02-034, filed 6/9/04, effective 7/10/04. Statutory Authority: RCW 39.19.030(17). WSR 98-13-075, § 326-02-034, filed 6/15/98, effective 7/16/98. Statutory Authority: RCW 39.19.030(7). WSR 97-17-045, § 326-02-034, filed 8/14/97, effective 9/15/97. Statutory Authority: RCW 39.19.220. WSR 94-11-113, § 326-02-034, filed 5/18/94, effective 6/18/94.

Wash. Admin. Code § 326-02-040 Prohibited activities with regard to chapter 39.19 RCW.

(1) RCW 39.19.080 makes it unlawful for a person, firm, corporation, business, union, or other organization to:

(a) Prevent or interfere with a contractor's or subcontractor's compliance with this chapter, or any rule adopted under this chapter;

(b) Submit false or fraudulent information to the state concerning compliance with this chapter or any such rule;

(c) Fraudulently obtain, retain, attempt to obtain or retain, or aid another in fraudulently obtaining or retaining or attempting to obtain or retain certification as a minority, women, or socially and economically disadvantaged individual's business enterprise for the purpose of this chapter;

(d) Knowingly make a false statement, whether by affidavit, verified statement, report, or other representation, to a state official or employee for the purpose of influencing the certification or denial of certification of any entity as a minority, women, or socially and economically disadvantaged individual's business enterprise;

(e) Knowingly obstruct, impede, or attempt to obstruct or impede any state official or employee who is investigating the qualification of a business entity that has requested certification as a minority, women, or socially and economically disadvantaged individual's business enterprise;

(f) Fraudulently obtain, attempt to obtain, or aid another person in fraudulently obtaining or attempting to obtain public moneys to which the person is not entitled under this chapter;

(g) Knowingly make false statements that any entity is or is not certified as a minority, women, or socially and economically disadvantaged individual's business enterprise for purposes of obtaining a contract governed by this chapter;

(h) To fail or refuse to comply with any provision of chapter 39.19 RCW or with a contract requirement established under this chapter.

(2) A certified business engages in prohibited activity when it fails to perform a commercially useful function on any public-sector contract or procurement. Failure to perform a commercially useful function occurs when a business:

(a) Functions as a conduit; or

(b) Functions as a pass-through; except brokers and firms operating in industries where such activity is common industry practice, e.g., insurance or real estate.

(3) A business that is deemed to be a switch business is also deemed to have engaged in prohibited activity.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-02-040, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-040, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-040, filed 10/24/88.

Wash. Admin. Code § 326-02-050 Penalties which may be imposed.

(1) The penalties under this section may be imposed by the office, or by the state agency or educational institution administering a contract or procurement within which a violation occurs. Nothing in chapter 39.19 RCW or this title prevents the state agency or educational institution administering the contract from pursuing any procedures or sanctions as are otherwise provided by statute, rule, or contract provision.

(2) Penalties which may be imposed include one or more of the following:

(a) Withhold payment until the violation is remedied;

(b) Debarment from contracting with the state for up to one year; debarment for up to three years may be imposed for willful repeated violations, exceeding a single violation;

(c) Suspension of the contract;

(d) Termination of the contract;

(e) Immediate suspension of the certification of a certified firm;

(f) Payment of civil penalties of up to five thousand dollars for each violation or up to ten percent of the amount of the contract; or

(g) Decertification or denial of certification.

(3) Penalties may be imposed on one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons.

(4) Penalties shall be imposed by the office giving a written notice which is either served personally or by certified mail, return receipt requested, to the person or business incurring the penalty. Except for suspension of certification, which is covered by WAC 326-02-090, the notice of the civil penalty shall be a final order of the office unless, within fifteen days after the notice is served, the person incurring the penalty appeals the penalty by filing a notice of appeal with the office.

(5) If a notice of appeal is filed in a timely manner, the office shall conduct a brief adjudicative proceeding as outlined in chapter 326-08 WAC.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-02-050, filed 5/11/11, effective 6/11/11
• WSR 94-11-117, § 326-02-050, filed 5/18/94, effective 6/18/94. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-050, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-050, filed 10/24/88.

Wash. Admin. Code § 326-02-060 Factors considered in determining penalties.

In determining the nature of the penalty and monetary amount, if any, of a penalty to be imposed, the factors which may be considered include, but are not limited to:

(1) The potential harm to the certified or noncertified business;

(2) Potential harm to the state, due to delay or other problems;

(3) The potential for harm to the public;

(4) Whether the violation occurs in the context of particular contract;

(5) The stage or percent of completion of a contract at which the violation occurs;

(6) The timing of the discovery of the violation;

(7) The contracting history of the alleged violator;

(8) The extent to which the alleged violator has cooperated with the investigation;

(9) Whether there have been previous violations by the person.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-060, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-060, filed 10/24/88.

Wash. Admin. Code § 326-02-070 Suspension of contract.

(1) The performance of a contract may be immediately suspended upon receipt of adequate evidence received by the office that the person has engaged in any of the prohibited activities described in WAC 326-02-040 and RCW 39.19.080.

(2) The decision of the office to suspend a contract is discretionary and will not be based on an unsupported allegation. Decisions to suspend shall be in the public interest, including the government's interest in doing business with firms that are responsible and in preserving competition.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-070, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-070, filed 10/24/88.

Wash. Admin. Code § 326-02-080 Suspension of certification.

The certification of a business may be suspended for engaging in any of the activities prohibited by RCW 39.19.080 and WAC 326-02-040, upon a showing that immediate action is necessary to prevent harm to the public welfare.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-080, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-080, filed 10/24/88.

Wash. Admin. Code § 326-02-090 Procedures for suspension, hearing provided.

(1) If the director determines that suspension of the certification of a business is necessary to prevent immediate harm to the public welfare, the business will be notified by personal service or certified mail, return receipt requested, of the suspension and the reasons therefor. The suspension shall take effect immediately upon receipt of the notice. The suspended business will be entitled to a hearing pursuant to chapter 326-08 WAC, but a written request for hearing must be made within twenty days of receipt of the notice of suspension.

(2) After the hearing, the presiding officer may recommend that:

(a) Suspension of certification remain in effect for up to one year;

(b) The suspension be removed; or

(c) That the business be decertified.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-02-090, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-090, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-02-090, filed 10/24/88.

Chapter 326-07 Public records rules and regulations for the office of minority and women's business enterprises.

Wash. Admin. Code § 326-07-010 Purpose.

The purpose of this chapter shall be to ensure compliance by the office with the provisions of chapter 42.17 RCW, and in particular with RCW 42.17.250 through 42.17.320, dealing with public records.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-010, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-020 Definitions.

(1) "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by the office regardless of physical form or characteristics.

(2) "Writing" means handwriting, typewriting, printing, photostating, photographing, and every other means of recording any form of communication or representation, including letters, words, pictures, sounds, symbols, or combination thereof; and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-020, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-030 Description of office organization.

(1) The office is located at 406 South Water Street, Olympia, Washington 98504.

(2) The office consists of a director, deputy director, confidential secretary, support staff, and three divisions; certification, agency support and business development, and information services.

(3) The office provides the following services: Certification of businesses, monitoring agency/educational institution compliance with chapter 39.19 RCW and this title, publication of a list of certified businesses, identification of barriers to participation by minority, women, and socially and economically disadvantaged-owned businesses in the contracting and procurement processes of state agencies and educational institutions, and development of a plan which ensures opportunities for qualified minority, women, and socially and economically disadvantaged-owned businesses to participate.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-07-030, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-030, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-040 Operations and procedures.

(1) Practice and procedure in and before the office are governed by the Model rules of procedure, chapter 10-08 WAC. Adjudicative proceedings are governed by chapter 326-08 WAC.

(2) The operations of the office are conducted according to the provisions of chapter 39.19 RCW.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-040, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-050 Public records available.

All public records of the office, except as otherwise provided in RCW 42.17.310, shall be available for public inspection and copying during the customary office hours of the office.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-050, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-060 Public records officer.

The person designated by the director as the public records officer shall be responsible for the following:

The implementation of the agency's rules and regulations regarding release of public records, coordinating the staff of the agency in this regard, and generally ensuring compliance by the staff with the public records disclosure requirements of chapter 42.17 RCW.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-060, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-070 Office hours.

For the purposes of this chapter, the customary office hours shall be from 8:00 a.m. to noon and from 1:00 p.m. to 5:00 p.m., Monday through Friday, excluding legal holidays.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-070, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-080 Requests for public records.

In accordance with requirements of chapter 42.17 RCW that agencies prevent unreasonable invasions of privacy, protect public records from damage or disorganization, and prevent excessive interference with essential functions of the office, public records may be inspected or copied or copies of such records may be obtained, by members of the public, upon compliance with the following procedures:

(1) A request shall be made in writing upon a form prescribed by the office which shall be available at its office. The form shall be presented to the public records officer; or to the appropriate member of the office's staff, if the public records officer is not available, at the office during customary office hours. The request shall include the following information:

(a) The name, address, and organization represented, if any, of the person requesting the record;

(b) The calendar date on which the request was made;

(c) The nature of the request;

(d) If the matter requested is referenced within the current index maintained by the records officer, a reference to the requested record as it is described in such current index;

(e) If the requested matter is not identifiable by reference to the office's current index, an appropriate description of the record requested;

(2) In all cases in which a member of the public is making a request, it shall be the obligation of the public records officer or, in his or her absence, the appropriate staff member to whom the request is made, to assist the member of the public in appropriately identifying the public record requested.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-080, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-090 Inspection and copying.

(1) Inspection of public records shall be made in the presence of the public records officer or, in his or her absence, the presence of the appropriate staff member.

(2) Copying of public records shall be performed only by the public records officer or, in his or her absence, the appropriate staff member.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-090, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-100 Fees.

(1) The following copy fees and payment procedures apply to requests to the office under chapter 42.56 RCW and received on or after July 23, 2017.

(2) Pursuant to RCW 42.56.120 (2)(b), the office is not calculating all actual costs for copying records because to do so would be unduly burdensome for the following reasons:

(a) The office does not have the resources to conduct a study to determine all its actual copying costs;

(b) To conduct such a study would interfere with other essential agency functions; and

(c) Through the 2017 legislative process, the public and requestors have commented on and been informed of authorized fees and costs, including for electronic records, provided in RCW 42.56.120 (2)(b) and (c), (3) and (4).

(3) The office will charge for copies of records pursuant to the default fees in RCW 42.56.120 (2)(b) and (c). The office will charge for customized services pursuant to RCW 42.56.120(3). Under RCW 42.56.130, the office may charge other copy fees authorized by statutes outside of chapter 42.56 RCW. The office may enter into an alternative fee agreement with a requestor under RCW 42.56.120(4). The charges for copying methods used by the office are summarized in the fee schedule available on the office's website at www.omwbe.wa.gov.

(4) Requestors are required to pay for copies in advance of receiving records. Fee waivers are an exception and are available for some small requests under the following conditions:

(a) It is within the discretion of the public records officer to waive copying fees when:

(i) All of the records responsive to an entire request are paper copies only and are twenty-five or fewer pages; or

(ii) All of the records responsive to an entire request are electronic and can be provided in a single email with attachments of a size totaling no more than the equivalent of one hundred printed pages. If that email for any reason is not deliverable, records will be provided through another means of delivery, and the requestor will be charged in accordance with this rule.

(b) Fee waivers are not applicable to records provided in installments.

(5) The public records officer may require an advance deposit of ten percent of the estimated fees when the copying fees for an installment or an entire request, or customized service charge, exceeds twenty-five dollars.

(6) All required fees must be paid in advance of release of the copies or an installment of copies, or in advance of when a deposit is required. The office will notify the requestor of when payment is due.

(7) Payment should be made by check or money order to the office of minority and women's business enterprises. The office prefers not to receive cash. For cash payments, it is within the public records officer's discretion to determine the denomination of bills and coins that will be accepted.

(8) The office will close a request when a requestor fails by the payment date to pay in the manner prescribed for records, an installment of records, or a required deposit.

History

• Statutory Authority: RCW 39.19.030, 42.56.100, 42.56.040 (1)(d), 42.56.120, and 2017 c 304. WSR 18-03-064, § 326-07-100, filed 1/11/18, effective 2/11/18. Statutory Authority: RCW 39.19.030(7). WSR 98-13-007, § 326-07-100, filed 6/4/98, effective 7/5/98
• WSR 92-24-107, § 326-07-100, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-110 Exemptions.

(1) The office reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 326-07-080 is exempt under the provisions of RCW 42.17.310.

(2) In addition, pursuant to RCW 42.17.260(1), the office reserves the right to delete identifying details when it makes available or publishes any public record, in any cases where there is reason to believe that disclosure of such details would be an invasion of personal privacy protected by chapter 42.17 RCW. The public records officer will fully justify such deletion in writing.

(3) All denials of requests for public records must be accompanied by a written statement specifying the reason for the denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the records withheld.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-110, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-120 Review of denials of public records request.

(1) Any person who objects to the denial of a request for a public record may petition for a review of such decision by tendering a written request for review. The written request shall specifically refer to the written statement by the public records officer which constituted or accompanied the denial.

(2) Immediately after receiving a written request for review of a decision denying a public record, the public records officer shall refer it to the director, who shall consider the matter in a timely manner. The request shall be returned with a final decision, within two business days following the original denial.

(3) Administrative remedies shall not be considered exhausted until the office has returned the petition with a decision or until the close of the second business day following denial, whichever occurs first.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-120, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-130 Protection of public records.

(1) No person shall knowingly alter, deface, or destroy public records of the agency.

(2) Original copies of public records of the office shall not be removed from the office.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-130, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-140 Records index.

(1) A chronological index shall be maintained by the public records officer on the following:

(a) All final orders entered after June 30, 1990, issued in adjudicative proceedings;

(b) Declarative orders entered after June 30, 1990, that are issued pursuant to RCW 34.05.240;

(c) Interpretative statements as defined in RCW 34.05.010(8) that were entered after June 30, 1990; and

(d) Policy statements as defined in RCW 34.05.010(14) that were entered after June 30, 1990.

(2) The index shall contain identifying information on each item listed in subsection (1) of this section and shall be maintained in ascending chronological order.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-140, filed 12/2/92, effective 1/2/93.

Wash. Admin. Code § 326-07-150 Communications with the office.

All communications with the office, including but not limited to, the submission of materials pertaining to its operations and/or the administration or enforcement of chapter 42.17 RCW and these rules, requests for copies of the office's rules, and other matters, shall be addressed as follows:

Office of Minority and Women's

Business Enterprises

c/o Public Records Officer

P.O. Box 41160

Olympia, Washington 98504-1160

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-07-150, filed 12/2/92, effective 1/2/93.

Chapter 326-08 Hearings procedures.

Wash. Admin. Code § 326-08-010 Purpose.

The purpose of this chapter is to effectuate the intent of chapter 39.19 RCW by providing procedures for adjudicative proceedings to review decisions by the office to decertify or deny certification of a business and for the assessment of penalties.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-010, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-010, filed 4/5/84.

Wash. Admin. Code § 326-08-011 Brief adjudicative proceedings.

(1) The Administrative Procedure Act provides for brief adjudicative proceedings in RCW 34.05.482 through 34.05.494. The office will conduct brief adjudicative proceedings where it does not violate any provision of law and where protection of the public interest does not require the office to give notice and an opportunity to participate to persons other than the parties. If an adjudicative proceeding is requested, a brief adjudicative proceeding will be conducted where the matter involves one or more of the following:

(a) A denial of certification under WAC 326-20-171; or

(b) A decertification of a firm under WAC 326-20-172; or

(c) An assessment of a penalty under WAC 326-02-050.

(2) If an adjudicative proceeding is requested in a matter not listed in subsection (1) of this section, a brief adjudicative proceeding may be conducted at the discretion of the presiding officer when it appears that:

(a) Only legal issues exist; or

(b) Both parties have agreed to a brief adjudicative proceeding; and

(c) The protection of the public interest does not require that the office provide notice and opportunity to participate to persons other than the parties.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-011, filed 5/11/11, effective 6/11/11.

Wash. Admin. Code § 326-08-012 Application for and conduct of brief adjudicative proceedings.

(1) An application for a brief adjudicative proceeding must be filed within twenty days from the date of service of the office's notice of action. A request for brief adjudication proceeding must set forth in detail the reasons the applicant believes the office's decision to deny certification is in error and include any additional information and documentation the applicant has to offer. Other parties may file a written response, including supporting affidavits, within ten days after receipt of the application for a brief adjudicative proceeding. Copies of the response shall be served on all parties.

(2) Brief adjudicative proceedings shall be conducted by a presiding officer for brief adjudicative proceedings designated by the director. The presiding officer for brief adjudicative proceedings shall have agency expertise in the subject matter but shall not have personally participated in the decision to issue the initiating document.

(3) Accommodations.

(a) If limited English-speaking or hearing impaired parties will be involved in a brief adjudicative proceeding and need an interpreter, an interpreter will be provided at no cost to the party or witness.

(b) If disabled parties or witnesses will be involved in a proceeding and need accommodation of facilities or services, the office will provide reasonable accommodation.

(c) Any party or witness requiring an interpreter or accommodation shall notify the office at the time of the request for a brief adjudicative proceeding.

(4) The parties or their representatives may present written documentation. The presiding officer for brief adjudicative proceedings shall designate the date by which written documents must be submitted by the parties.

(5) The presiding officer for brief adjudicative proceedings may, in his or her discretion, entertain oral argument from the parties or their representatives.

(6) No witnesses may appear to testify.

(7) In addition to the record, the presiding officer for brief adjudicative proceedings may employ agency expertise as a basis for decision.

(8) The presiding officer for brief adjudicative proceedings shall not issue an oral order. Within ten days of the final date for submission of materials or oral argument, if any, the presiding officer for brief adjudicative proceedings shall enter an initial order.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-012, filed 5/11/11, effective 6/11/11.

Wash. Admin. Code § 326-08-013 Initial orders on brief adjudicative proceedings; review of initial orders.

(1) Initial orders on brief adjudicative proceedings shall become final twenty-one days after service of the initial order unless:

(a) A petition for review of an initial order is served by certified mail, registered mail, or personal service upon the office, and copies shall be served on all parties. A petition for review of an initial order shall contain an explanation of the party's view of the matter and a statement of reasons why the initial order is incorrect; or

(b) On its own initiative, the office determines to review the matter and, within twenty-one days of service of the initial order, provides notice to the parties of the date by which a determination shall be made.

(2) If review is taken under subsection (1) of this section, each party shall be provided an opportunity to state its view of the matter, and a written order containing findings of fact, conclusions of law and order shall be entered and served upon the parties within twenty days of service of the initial order or the request for review, whichever is later.

(3) A request for review is deemed to be denied if the office does not act on the request within twenty days after the request is submitted.

(4) If administrative review is taken under subsection (1) of this section, the presiding officer may convert the matter to a full adjudicative proceeding.

(5) The director or his or her designee shall act as the reviewing officer and shall conduct a review of an initial order upon the timely service of a petition for review or upon his or her own motion. The reviewing officer shall adopt, modify, or reject the initial order; but the reviewing officer shall not take any action on review less favorable to any party without giving that party notice and opportunity to explain the party's view of the matter.

(6) The order on review shall be in writing, shall include a brief statement of the reasons for the decision, and shall be entered within twenty days after the date of the initial order or the petition for review, whichever is later. The order shall include a description of any further available administrative review or, if none is available, a notice that judicial review may be available.

(7) The record in a brief adjudicative proceeding shall consist of any documents regarding the matters that were considered or prepared by the presiding officer for the brief adjudicative proceedings and/or by the reviewing officer for any review.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-013, filed 5/11/11, effective 6/11/11.

Wash. Admin. Code § 326-08-015 Full adjudicative proceedings.

At the office's discretion or a presiding officer's determination that to protect the public interest or if the interest involved in the controversy warrants the use of more formal hearing procedures, the office or presiding officer can convert a brief adjudicative proceeding to a full adjudicative proceeding.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-015, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-015, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 85-14-101 (Order 85-6), § 326-08-015, filed 7/2/85.

Wash. Admin. Code § 326-08-016 Commencement of a full adjudicative proceeding.

(1) The office shall commence a full adjudicative proceeding within ninety days after the determination that the use of more formal hearing procedures is required.

(2) A full adjudicative proceeding commences when the office notifies a party that a prehearing conference, hearing, or other stage of an adjudicative proceeding will be conducted.

(3) Within thirty days after receipt of the request for an adjudicative proceeding, the office shall examine the request, notify the requestor of any obvious errors or omissions, request any additional information the office wishes to obtain and is permitted by law to require, and notify the requestor of the name, mailing address, and telephone number of the office that may be contacted regarding the request.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-016, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-016, filed 7/16/92, effective 8/16/92.

Wash. Admin. Code § 326-08-018 Presiding officer.

The presiding officer in a full adjudicative proceeding is the administrative law judge designated by the office of administrative hearings after notice of hearing is issued by the office.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-018, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-018, filed 7/16/92, effective 8/16/92.

Wash. Admin. Code § 326-08-020 General procedures rules for full adjudicative proceedings.

The provisions of chapter 10-08 WAC, "Model rules of procedure" shall apply to full adjudicative hearings regarding certification or penalties by the office.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-020, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-020, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-020, filed 4/5/84.

Wash. Admin. Code § 326-08-030 Amendments apply to pending cases.

An amendment to this chapter applies to cases pending at the time of the adoption of the amendment, unless the amendment or rule-making order says that it does not apply to pending cases. An amendment to this chapter does not require that anything already done be redone to comply with the amendment unless the amendment expressly says so.

History

• Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-030, filed 4/5/84.

Wash. Admin. Code § 326-08-035 Who may appear.

(1) Any party to a full adjudicative proceeding may participate personally.

(2) The owner of the majority interest in a certified business is a necessary party and shall appear on behalf of the business.

(3) A former employee of the office shall not, at any time after severing his or her employment with the office, appear as a representative or expert witness on behalf of a petitioner in a matter in which he or she previously took an active part as a representative of the office, except with the written permission of the director.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-035, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-035, filed 7/16/92, effective 8/16/92.

Wash. Admin. Code § 326-08-040 Who may appear in a representative capacity.

(1) Any party to an adjudicative proceeding may be represented or advised by:

(a) An attorney admitted to practice before the Washington state supreme court;

(b) Other attorney admitted to practice before the highest court of any other state, if attorneys from Washington state are permitted to appear in a representative capacity before administrative agencies of that state, and if not otherwise prohibited by Washington law;

(2) A former employee of the office may appear only as permitted in WAC 326-08-035(3).

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-040, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-040, filed 4/5/84.

Wash. Admin. Code § 326-08-050 Notice of hearing.

(1) When a full adjudicative proceeding is commenced, the office will issue a notice to all parties and to the office of administrative hearings as provided by RCW 34.05.434.

(2) Time. All parties shall be served with notice not less than twenty days before the hearing.

(3) The notice shall include:

(a) The names and mailing addresses of all parties to whom notice is being given and, if known, the names and addresses of their representatives;

(b) The name of the proceeding;

(c) The name, official title, mailing address, and telephone number of the presiding officer, if known;

(d) A statement of the time, place, and nature of the proceeding;

(e) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(f) A reference to the particular sections of the statutes and rules involved;

(g) A short and plain statement of the matters asserted by the agency; and

(h) A statement that a party who fails to attend or participate in a hearing or other stage of an adjudicative proceeding may be held in default in accordance with WAC 326-08-105.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-050, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-050, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-050, filed 4/5/84.

Wash. Admin. Code § 326-08-051 Accommodations.

(1) If limited English-speaking or hearing impaired parties or witnesses will be involved in an adjudicative proceeding and need an interpreter, an interpreter will be provided at no cost to the party or witness.

(2) If disabled parties or witnesses will be involved in a hearing and need accommodation of facilities or services, the office will provide reasonable accommodation.

(3) Any party or witness requiring an interpreter or accommodation shall notify the office at the time of the request for an adjudicative proceeding.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-051, filed 7/16/92, effective 8/16/92.

Wash. Admin. Code § 326-08-070 Service of papers.

(1) All notices, pleadings, and other papers filed with the presiding officer shall be served upon all counsel and representatives of record and upon unrepresented parties or upon their agents designated by them or by law.

(2) Service shall be made personally or, unless otherwise provided by law, by first-class, registered, or certified mail; by telegraph, by electronic telefacsimile transmission and same-day mailing of copies, or by commercial parcel delivery company.

(3) Service by mail shall be regarded as completed upon deposit in the United States mail properly stamped and addressed. Service by telegraph shall be regarded as completed when deposited with a telegraph company properly addressed and with charges prepaid. Service by electronic telefacsimile transmission shall be regarded as completed upon production by the telefacsimile device of confirmation of transmission. Service by commercial parcel delivery shall be regarded as completed upon delivery to the parcel delivery company with charges prepaid.

(4) Papers required to be filed with the office shall be deemed filed upon actual receipt during office hours at any location of the office. Papers required to be filed with the presiding officer shall be deemed filed upon actual receipt during office hours at the office of the presiding officer.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-24-107, § 326-08-070, filed 12/2/92, effective 1/2/93
• WSR 92-15-077, § 326-08-070, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-070, filed 4/5/84.

Wash. Admin. Code § 326-08-080 Who may issue subpoenas.

Subpoenas may be issued by the director of the office, the director's designee, the assigned administrative law judge, or an attorney for any party in the adjudicative proceeding as provided in RCW 34.05.446.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-080, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-080, filed 4/5/84.

Wash. Admin. Code § 326-08-090 Service of subpoenas.

Subpoenas may be served in any manner authorized by WAC 326-08-070.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-090, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-090, filed 4/5/84.

Wash. Admin. Code § 326-08-095 Burden of proof at a hearing.

(1) At a hearing held pursuant to WAC 326-08-010, the burden of proof shall be on the applicant to demonstrate that the applicant qualifies for certification under chapter 39.19 RCW and Title 326 WAC.

(2) The administrative law judge shall only admit and consider evidence on the issue of whether the office's decision to decertify or to deny certification based on the information which was submitted or obtained by the office, was correct at the time it was made.

(3) The administrative law judge shall only admit and consider evidence related to the grounds specified in the request for an adjudicative proceeding.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-095, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 86-17-018 (Order 86-2), § 326-08-095, filed 8/11/86.

Wash. Admin. Code § 326-08-100 Procedures for settlement or disposition without a hearing.

(1) Disposition may be made of any adjudicative proceeding by stipulation, consent order, default, or summary judgment.

(2) Summary judgment will be considered pursuant to a time schedule set by the administrative law judge and may be decided without oral argument.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-100, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-100, filed 4/5/84.

Wash. Admin. Code § 326-08-105 Default.

(1) If a party fails to attend or participate in a hearing or other stage of an adjudicative proceeding, the administrative law judge may serve upon all parties a default order with a statement of the grounds for the order.

(2) Within seven days after service of a default order under subsection (1) of this section, the party against whom the default order was entered may file a written motion to the administrative law judge requesting that the order be vacated and stating the grounds relied upon. The administrative law judge will set aside an order of default only upon a showing of good and sufficient cause for such failure to appear or to request a postponement prior to the scheduled time for hearing. In the event such order of default is set aside, all interested parties shall be so notified in writing and the matter restored to the hearing calendar.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-105, filed 7/16/92, effective 8/16/92.

Wash. Admin. Code § 326-08-110 Initial order.

(1) Within ninety days after the conclusion of a full adjudicative proceeding or after submission of memos, briefs, or proposed findings that the administrative law judge may allow after the adjudicative proceeding, the administrative law judge shall prepare an initial order for signature by the director.

(2) The initial order shall include a statement of findings and conclusions and the reasons and basis on all the material issues of fact, law, or discretion presented on the record, including the remedy or sanction. Any findings based substantially on credibility of evidence or demeanor of witnesses shall be so identified. Findings set forth in language that is essentially a repetition or paraphrase of the relevant provision of law shall be accompanied by a concise and explicit statement of the underlying evidence of record to support the findings. The initial order shall also include a statement of the available procedures and time limits for seeking reconsideration or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order.

(3) Findings of fact shall be based exclusively on the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. Findings shall be based on the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs. Findings may be based on such evidence even if it would be inadmissible in a civil trial. However, the administrative law judge shall not base a finding exclusively on such inadmissible evidence unless the administrative law judge determines that doing so would not unduly abridge the parties' opportunities to confront witnesses and rebut evidence. The basis for this determination shall appear in the order.

(4) Where it bears on the issues presented, the experience, technical competency, and specialized knowledge of the office may be used in the evaluation of evidence.

(5) If an administrative law judge becomes unavailable for any reason before the entry of the order, a substitute administrative law judge shall be appointed by the office of administrative hearings. The substitute administrative law judge shall use any existing record and may conduct any further proceedings appropriate in the interests of justice. Any action taken by a duly appointed administrative law judge for an unavailable administrative law judge is as effective as if taken by the unavailable administrative law judge.

(6) The administrative law judge shall cause to be served copies of the order on all parties.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-110, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-110, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-110, filed 4/5/84.

Wash. Admin. Code § 326-08-120 Objections to initial order.

(1) Any party to a full adjudicative proceeding may file objections to an initial order pursuant to RCW 34.05.464.

(2) The objections to the initial order shall be filed with the director within twenty days of the date of service of the initial order. Copies of the objections to the initial order shall be served upon all other parties.

(3) The objections to the initial order shall specify the portions of the initial order to which objection is taken and shall refer to the evidence of the record which is relied upon to support each objection.

(4) Any party may file a reply to the objections to the initial order. The reply shall be filed with the director within ten days of the date of service of the objections to the initial order and copies of the reply shall be served upon all other parties.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-08-120, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-120, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-120, filed 4/5/84.

Wash. Admin. Code § 326-08-130 Review of initial order—Final order.

(1) An initial order will become final without further action by the office unless, within ninety days of the service of the initial order:

(a) The director determines that the initial order should be reviewed; or

(b) A party to the adjudicative proceeding files objections to the initial order as required in WAC 326-08-120(2).

(2) Upon the occurrence of either subsection (1)(a) or (b) of this section, the director will serve in writing a final order.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-130, filed 7/16/92, effective 8/16/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-08-130, filed 4/5/84.

Wash. Admin. Code § 326-08-140 Petition for reconsideration of a final order.

(1) Within ten days of the service of a final order or when an initial order becomes final, any party may file a petition for reconsideration, stating the specific grounds upon which relief is requested. The petition shall be filed with the office.

(2) No petition for reconsideration may stay the effectiveness of an order.

(3) If a petition for reconsideration is timely filed, the time for filing a petition for judicial review does not commence until the director disposes of the petition for reconsideration.

(4) The petition shall be disposed of by the same person or persons who entered the final order, if reasonably available. The disposition shall be in the form of a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and remanding for further hearing by the administrative law judge.

(5) The director is deemed to have denied the petition for reconsideration, if, within twenty days from the date the petition is filed, the director does not either:

(a) Dispose of the petition; or

(b) Serve the parties with a written notice specifying the date by which it will act on the petition.

(6) The filing of a petition for reconsideration is not a prerequisite for seeking judicial review. An order denying reconsideration, or a notice provided for in subsection (5)(b) of this section is not subject to judicial review.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-15-077, § 326-08-140, filed 7/16/92, effective 8/16/92.

Chapter 326-20 Certification.

Wash. Admin. Code § 326-20-010 In general.

(1) Any business which meets the definition of a minority business enterprise, a women's business enterprise, a minority woman's business enterprise, a combination minority and women's business enterprise, socially and economically disadvantaged business enterprise, corporate-sponsored dealership as set forth in this title, or public works small business enterprise is eligible to be certified by the state of Washington.

(2) It is not the intent of the program to encourage the participation of businesses owned and controlled by minorities, and/or women, and/or socially and economically disadvantaged individuals, who have not encountered practices which prohibited or limited their access to contract opportunities, markets, financing, and other resources, based on their race, ethnic origin, or sex, or disability.

(3) Notwithstanding the provisions in subsection (1) of this section, to be eligible for certification, any business applying for certification shall have obtained all licenses necessary to lawfully conduct business in the state of Washington.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-010, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-010, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-010, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 87-18-030 (Order 87-6), § 326-20-010, filed 8/27/87. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-010, filed 10/28/83.

Wash. Admin. Code § 326-20-035 Presumptive group membership.

(1) After reviewing an applicant's sworn declaration of membership in a presumptively disadvantaged group, the agency may ask the applicant to present additional evidence that the person is a member of the identified group, if the agency has a well-founded reason to question the applicant's claim of group membership.

(2) The agency will provide the applicant an explanation of the reason(s) for questioning the applicant's group membership. The agency will consider whether the person has held themselves out as a member of the group for an extended period of time prior to application for certification, and whether the relevant community regards the person as a member of that group. The agency may require the applicant to produce appropriate documentation of group membership.

(3) The agency will not impose a disproportionate burden on members of any particular designated group in violation of Title VI of the Civil Rights Act of 1964.

(4) If the agency determines an individual claiming membership of a presumed disadvantaged group is not a member, the individual must demonstrate social and economic disadvantage on an individual basis under WAC 326-20-045.

(5) The decisions concerning membership in a designated group are subject to the certification appeals process outlined in WAC 326-20-171.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-035, filed 6/7/19, effective 7/8/19.

Wash. Admin. Code § 326-20-045 Proof of socially and economically disadvantaged status.

The following guidance is adapted, with minor modifications, from the United States Small Business Administration's regulations concerning social and economic disadvantage determinations (see 13 C.F.R. 124.103(c) and 124.104) and 49 C.F.R. Part 26. Each nonpresumptive socially and economically disadvantaged owner of a business applying for certification shall submit with the application form the statement of personal net worth and social and economic disadvantage forms with documents which show that the owner is a socially and economically disadvantaged individual. The final determination will be in the sole discretion of the office.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-045, filed 4/6/04, effective 5/7/04.

Wash. Admin. Code § 326-20-046 Proof of social disadvantage.

(1) Evidence of individual social disadvantage must include the following elements:

(a) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, disability, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged;

(b) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and

(c) Negative impact on entry into or advancement in the business world because of the disadvantage. The office will consider any relevant evidence in assessing this element. In every case, however, the office will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world.

(i) Education. The office will consider such factors as denial of equal access to institutions of higher education and vocational training, exclusion from social and professional association with students or teachers, denial of educational honors rightfully earned, and social patterns or pressures which discouraged the individual from pursuing a professional or business education.

(ii) Employment. The office will consider such factors as unequal treatment in hiring, promotions and other aspects of professional advancement, pay and fringe benefits, and other terms and conditions of employment; retaliatory or discriminatory behavior by an employer or labor union; and social patterns or pressures which have channeled the individual into nonprofessional or nonbusiness fields.

(iii) Business history. The office will consider such factors as unequal access to credit or capital, acquisition of credit or capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other work, unequal treatment by potential customers and business associates, and exclusion from business or professional organizations.

(2) With respect to subsection (1) of this section, the office notes that people with disabilities have disproportionately low incomes and high rates of unemployment. Many physical and attitudinal barriers remain to their full participation in education, employment, and business opportunities available to the general public. The Americans with Disabilities Act (ADA) was passed in recognition of the discrimination faced by people with disabilities. It is plausible that many individuals with disabilities—especially persons with severe disabilities (e.g., significant mobility, vision, or hearing impairments)—may be socially and economically disadvantaged.

(3) Under the laws concerning social and economic disadvantage, people with disabilities are not a group presumed to be disadvantaged. Nevertheless, the office shall look carefully at individual showings of disadvantage by individuals with disabilities, making a case-by-case judgment about whether such an individual meets the criteria of this section. Subject to Title II of the ADA, the office must also ensure its SEDBE programs are accessible to individuals with disabilities. For example, physical barriers or the lack of application and information materials in accessible formats cannot be permitted to thwart the access of potential applicants to the certification process or other services made available to SEDBEs and applicants.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-046, filed 4/6/04, effective 5/7/04.

Wash. Admin. Code § 326-20-047 Proof of economic disadvantage.

Evidence of individual social disadvantage and/or individual economic disadvantage must include the following elements:

(1) Submission of narrative and financial information.

(a) Each individual claiming economic disadvantage must describe the conditions, which are the basis for the claim in a narrative statement, and must submit personal financial information.

(b) When married, an individual claiming economic disadvantage also must submit separate financial information for their spouse, unless the individual and the spouse are legally separated.

(2) Factors to be considered. In considering diminished capital and credit opportunities, the office will examine factors relating to the personal financial condition of any individual claiming disadvantaged status, including personal income for the past two years (including bonuses and the value of company stock given in lieu of cash), personal net worth, and the fair market value of all assets, whether encumbered or not. The office will also consider the financial condition of the applicant compared to the financial profiles of small businesses in the same primary industry classification, or, if not available, in similar lines of business, which are not owned and controlled by socially and economically disadvantaged individuals in evaluating the individual's access to credit and capital. The financial profiles that the office will compare include total assets, net sales, pretax profit, sales/working capital ratio, and net worth.

(3) Transfers within two years.

(a) Except as set forth in (b) of this subsection, the office will attribute to an individual claiming disadvantaged status any assets which that individual has transferred to an immediate family member, or to a trust, a beneficiary of which is an immediate family member, for less than fair market value, within two years prior to a concern's application for participation in the program, unless the individual claiming disadvantaged status can demonstrate that the transfer is to or on behalf of an immediate family member for that individual's education, medical expenses, or some other form of essential support.

(b) The office will not attribute to an individual claiming disadvantaged status any assets transferred by that individual to an immediate family member that are consistent with the customary recognition of special occasions, such as birthdays, graduations, anniversaries, and retirements.

(c) In determining an individual's access to capital and credit, the office may consider any assets that the individual transferred within such two-year period described by (a) of this subsection that are not considered in evaluating the individual's assets and net worth (e.g., transfers to charities).

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-047, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-047, filed 4/6/04, effective 5/7/04.

Wash. Admin. Code § 326-20-048 Presumption of disadvantage.

(1) Social disadvantage. The agency rebuttably presumes the following persons are socially disadvantaged individuals for the purposes of certification, consistent with 49 C.F.R. Section 26.67: Women; persons who are Black/African American, Hispanic/Latino, Native American, Asian, Pacific Islander, Native Hawaiian, and Alaska Native; and other minorities found disadvantaged by the small business association. Additionally, the agency rebuttably presumes that LGBTQ individuals are socially disadvantaged individuals for the purposes of certification.

(2) Each presumptively socially disadvantaged applicant must submit a signed declaration of eligibility (DOE), as provided by the office, that they are socially and economically disadvantaged.

(3)(a) Economic disadvantage. Each owner of a firm applying for state certification must sign a declaration that they have a personal net worth that does not exceed $2,047,000, per WAC 326-20-049. The office will adjust the personal net worth cap routinely.

(b) Rebuttal of economic disadvantage. If the statement of personal net worth that an individual submits under this section shows that the individual's personal net worth exceeds $2,047,000 or a reasonable person would not consider the person economically disadvantaged, the individual's economic disadvantage is rebutted, and the individual is not deemed to be economically disadvantaged. Such an individual is no longer eligible to participate in the program and cannot regain eligibility by making an individual showing of disadvantage. The office is not required to have a proceeding under this section to rebut the presumption of economic disadvantage in this case.

(4) Individual determinations of social and economic disadvantage. Firms owned and controlled by individuals who are not presumed to be socially and economically disadvantaged may apply for Socially and Economically Disadvantaged Business Enterprise (SEDBE) certification. The office makes a case-by-case determination of whether each individual whose ownership and control are relied upon for SEDBE certification is socially and economically disadvantaged. In such a proceeding, the applicant firm has the burden of demonstrating to the office, by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged. An individual whose personal net worth exceeds $2,047,000 shall not be deemed to be economically disadvantaged. In making these determinations, the office uses WAC 326-20-046 and 326-20-047. The office requires that applicants provide sufficient information to permit determinations under WAC 326-20-046 and 326-20-047.

History

• Statutory Authority: RCW 39.19.030. WSR 25-14-093, s 326-20-048, filed 7/1/25, effective 8/1/25. Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-048, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-048, filed 6/7/19, effective 7/8/19. Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-048, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-048, filed 4/6/04, effective 5/7/04.

Wash. Admin. Code § 326-20-049 Personal net worth.

(1) Each individual owner of a firm applying for state certification, whose ownership and control are relied on for certification, must fill out a personal net worth statement and sign a declaration of eligibility that their personal net worth does not exceed $2,047,000. If any individual's personal net worth exceeds $2,047,000, the individual's presumption of economic disadvantage is rebutted and the individual does not meet the criteria for certification.

(2) The office may require additional financial information where necessary to accurately determine an individual's personal net worth.

(3) In determining an individual's personal net worth, the office will use the following criteria:

(a) Exclude the individual's ownership interest in the applicant firm;

(b) Exclude the individual's equity in his or her primary residence. The equity is the market value of the residence less any mortgages and home equity loan balances;

(c) Not use a contingent liability to reduce the individual's net worth;

(d) Exclude retirement assets in full;

(e) Include any assets the individual has transferred within two years prior to the application or certification update to:

(i) An immediate family member;

(ii) A trust where the beneficiary is an immediate family member; or

(iii) The applicant firm for less than fair market value.

(f) The assets described in (e) of this subsection will not be counted toward an individual's personal net worth if:

(i) The applicant demonstrates that the transfer is to or on behalf of an immediate family member for that individual's education, medical expenses, or some other form of essential support; or

(ii) The transfer is consistent with the customary recognition of special occasions, such as birthdays, graduations, anniversaries, and retirements.

(g) For the purposes of this section, "immediate family member" means father, mother, husband, wife, son, daughter, brother, sister, grandfather, grandmother, father-in-law, mother-in-law, sister-in-law, brother-in-law, and domestic partner and civil unions recognized under state law.

(4) If an individual's personal net worth does not exceed $2,047,000 as described in this section, the office may rebut an individual's presumption of economic disadvantage if the statement of personal net worth and supporting documentation demonstrates that a reasonable person would not consider the individual to be economically disadvantaged even though the individual's personal net worth (PNW) did not exceed the limitation cap. Among the evidence the office can consider are ready access to wealth, income or assets of a type or magnitude inconsistent with economic disadvantage, a lavish lifestyle, community property, or other circumstances that economically disadvantaged people typically do not enjoy. Liabilities and the kind of asset exclusions used in PNW calculations would not be taken into account as part of this determination.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-049, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-049, filed 6/12/17, effective 8/1/17.

Wash. Admin. Code § 326-20-050 Proof of ownership of business.

(1) General rule: A socially and economically disadvantaged owner must own at least 51 percent of each class of ownership of the firm. Each socially and economically disadvantaged owner whose ownership is necessary to the firm's eligibility must demonstrate that their ownership satisfies the requirements of this section. If not, the firm is ineligible.

(2) Overall requirements. A socially and economically disadvantaged owner's acquisition and maintenance of an ownership interest meets the requirements of this section only if the owner demonstrates the following:

(a) Acquisition. The socially and economically disadvantaged owner acquires ownership at fair value and by one or more "investments" as defined in subsection (3) of this section.

(b) Proportion. No owner derives benefits or bears burdens that are clearly disproportionate to their ownership shares.

(c) Maintenance. This section's requirements continue to apply after the socially and economically disadvantaged owner's acquisition and the firm's certification. The socially and economically disadvantaged owner must maintain their investment and its proportion relative to those of other owners such that eligible individuals retain at least 51 percent ownership.

(i) The socially and economically disadvantaged owner may not withdraw or revoke their investment.

(ii) When an existing co-owner contributes significant, additional, post-acquisition cash or property to the firm, the socially and economically disadvantaged owner must increase their own investment to a level not clearly disproportionate to the nondisadvantaged owner's investment.

(iii) An organic increase in the value of the business does not affect maintenance because the value of the owners' investments remains proportional.

(3) Investments. A socially and economically disadvantaged owner may acquire ownership by purchase, capital contribution, or gift. Subject to the other requirements of this section, each is considered an "investment" in the firm, as are additional purchases, contributions, and qualifying gifts.

(a) Investments are unconditional and at full risk of loss.

(b) Investments include a significant outlay of the socially and economically disadvantaged owner's own money.

(c) For purposes of this part, title determines ownership of assets used for investments and of ownership interests themselves. This rule applies regardless of contrary community property, equitable distribution, banking, contract, or similar laws, rules, or principles.

(i) The person who has title to the asset owns it in proportion to their share of title.

(ii) However, the title rule is deemed not to apply when it produces a certification result that is manifestly unjust.

(d) If the socially and economically disadvantaged owner jointly (50/50) owns an investment of cash or property, the socially and economically disadvantaged owner may claim at least a 51 percent ownership interest, only if the other joint owner formally transfers to the socially and economically disadvantaged owner enough of his ownership in the invested asset(s) to bring the socially and economically disadvantaged owner's investment to at least 51 percent of all investments in the firm. Such transfers may be gifts described in subsection (5) of this section.

(4) Purchases and capital contributions.

(a) The following situations qualify as purchase and/or capital contributions:

(i) A purchase of an ownership interest is an investment when the consideration is entirely monetary and not a trade of property or services.

(ii) Capital that the socially and economically disadvantaged owner contributes directly to the company is an investment when the contribution is all cash or a combination of cash and tangible property and/or realty.

(iii) Debt-financed purchases or capital contributions are investments when they comply with the requirements of this section.

(b) The following situations do not qualify as purchase and/or capital contribution:

(i) Contributions of time, labor, services, and the like are not investments or components of investments.

(ii) Loans are not investments. The proceeds of loans may be investments to the extent that they finance the socially and economically disadvantaged owner's qualifying purchase or capital contribution.

(iii) Guarantees are not investments.

(iv) The firm's purchases or sales of property, including ownership in itself or other companies, are not the socially and economically disadvantaged owner's investments.

(v) Other persons' or entities' purchases or capital contributions are not the socially and economically disadvantaged owner's investments.

(5) Gifts. A gift to the socially and economically disadvantaged owner is an investment when it meets the requirements of this section. The gift rules apply to partial gifts, bequests, inheritances, trust distributions, and transfers for inadequate consideration. They apply to gifts of ownership interests and to gifts of cash or property that the socially and economically disadvantaged owner invests. The following requirements apply to gifts on which the socially and economically disadvantaged owner relies for their investment:

(a) The transferor/donor is or immediately becomes uninvolved with the firm in any capacity and in any other business that contracts with the firm other than as a lessor or provider of standard support services;

(b) The transferor does not derive undue benefit; and

(c) A writing documents the gift. When the socially and economically disadvantaged owner cannot reasonably produce better evidence, a receipt, canceled check, or transfer confirmation suffices, if the writing identifies transferor, transferee, amount or value, and date.

(d) Curative measures. The rules of this section do not prohibit transactions that further the objectives of, and compliance with, the provisions of this part. A socially and economically disadvantaged owner or firm may enter into legitimate transactions, alter the terms of ownership, make additional investments, or bolster underlying documentation in a good faith effort to remove, surmount, or correct defects in eligibility, as long as the actions are consistent with this part.

(i) The certifier may notify the firm of eligibility concerns and give the firm time, if the firm wishes, to attempt to remedy impediments to certification.

(ii) The firm may, of its own volition, take curative action up to the time of the certifier's decision. However, it must present evidence of curation before the certifier's decision.

(iii) The certifier may provide general assistance and guidance but not professional (legal, accounting, valuation, etc.) advice or opinions.

(iv) While the certifier may not affirmatively impede attempts to cure, it may maintain its decision timeline and make its decision based on available evidence.

(v) The certifier must deny or remove certification when the firm's efforts or submissions violate the rules in (e) of this subsection.

(e) Anti-abuse rules.

(i) The substance and not the form of transactions drives the eligibility determination.

(ii) The certifier must deny applications based on sham transactions or false representations, and it must decertify firms that engage in or make them. Transactions or representations designed to evade or materially mislead subject the firm to the same consequences.

(iii) Fraud renders the firm ineligible and subjects it to possible sanctions, suspension, debarment, criminal prosecution, civil litigation, and any other consequence or recourse not proscribed in this part.

(6) Debt-financed investments.

(a) Subject to the other provisions of this subpart, a socially and economically disadvantaged owner may borrow money to finance an investment to acquire ownership if the following requirements are met:

(i) Money that the socially and economically disadvantaged owner receives as a gift is their own money.

(ii) The firm does not finance any part of the investment, directly or indirectly. The socially and economically disadvantaged owner does not rely on the company's credit or other resources to repay any part of the debt or otherwise to finance any part of their investment.

(iii) The loan is real, enforceable, not in default, not offset by another agreement, and on standard commercial, arm's length terms. The loan agreement requires level, regularly recurring payments of principal and interest, according to a standard amortization schedule. The loan agreement must permit prepayments, including by refinancing.

(b) If the creditor forgives or cancels all or part of the debt, or the socially and economically disadvantaged owner defaults, the entire debt-financed portion of the socially and economically disadvantaged owner's purchase or capital contribution is no longer an investment. This does not prohibit refinancing with debt that meets the requirements of this section or preclude prompt cures of ownership issues.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-050, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-050, filed 6/7/19, effective 7/8/19
• WSR 04-08-093, § 326-20-050, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-050, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 87-18-030 (Order 87-6), § 326-20-050, filed 8/27/87
• WSR 84-09-002 (Order 84-5), § 326-20-050, filed 4/5/84. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-050, filed 10/28/83.

Wash. Admin. Code § 326-20-055 Subsidiaries.

An eligible firm must be owned by an individual(s) who is socially and economically disadvantaged, rather than owned by another firm, except as provided below:

(1) If a socially and economically disadvantaged individual(s) owns and controls a firm through a parent or holding company that is established for tax, capitalization, or other purposes consistent with industry practice; and the parent or holding company owns and controls the subsidiary.

(2) The agency may certify such a subsidiary if there is cumulatively 51 percent ownership of the subsidiary by a socially and economically disadvantaged individual(s). Examples of such subsidiaries include, but are not limited to:

(a) A socially and economically disadvantaged individual(s) owns 100 percent of a holding company and has a wholly owned subsidiary. The subsidiary may be certified, if it meets all other requirements.

(b) A socially and economically disadvantaged individual(s) owns 100 percent of the holding company and owns 51 percent of a subsidiary. The subsidiary may be certified, if all other requirements are met.

(c) A socially and economically disadvantaged individual(s) owns 80 percent of the holding company and the holding company in turn owns 70 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is 56 percent (80 percent of the 70 percent). This is more than 51 percent, so the agency may certify the subsidiary, if all other requirements are met.

(d) Same as the examples in (b) and (c) of this subsection, but someone other than the socially and economically disadvantaged owner(s) of the parent or holding company control the subsidiary. Even though the subsidiary is owned by disadvantaged individuals, through the holding or parent company, the agency cannot certify it because it fails to meet control requirements.

(e) A socially and economically disadvantaged individual(s) owns 60 percent of the holding company and 51 percent of a subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is approximately 31 percent. This is less than 51 percent, so the agency cannot certify the subsidiary.

(f) The holding company, in addition to the subsidiary seeking certification, owns several other companies. The combined gross receipts of the holding companies and its subsidiaries are greater than the size standard for the subsidiary seeking certification or the gross receipts cap of WAC 326-20-096. Under the rules concerning affiliation, the subsidiary fails to meet the size standard and cannot be certified.

(3) Businesses certified by the office are limited to having one level of ownership above an operating company. That is, there could be a "parent" company but not a "grandparent" company.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-055, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-055, filed 6/7/19, effective 7/8/19.

Wash. Admin. Code § 326-20-060 Community ownership.

(1) When an ownership interest arises in a nonapplicant spouse or registered domestic partner solely because of community property laws, the agency will not disqualify the applicant if both parties certify that:

(a) Only the applicant spouse or registered domestic partner participates in the management of the business; and

(b) The nonparticipating spouse or registered domestic partner relinquishes control over their community interest in the business.

(2) When an ownership interest arising in a nonapplicant spouse or registered domestic partner solely because of community property laws, the agency will not disqualify the applicant because of a provision for the nonapplicant spouse or domestic partner to cosign a financing agreement, contract for the purchase or sale of real or personal property, bank signature card, or other document.

(3) The agency must give particular scrutiny to the ownership and control of a firm to ensure it is owned and controlled, in substance as well as in form, by a socially and economically disadvantaged individual, when the ownership of the firm or its assets is transferred from a spouse or registered domestic partner who is not a socially and economically disadvantaged individual.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-060, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-060, filed 6/7/19, effective 7/8/19. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-060, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-20-060, filed 4/5/84. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-060, filed 10/28/83.

Wash. Admin. Code § 326-20-070 Counting ownership held in trust.

In determining whether the fifty-one percent ownership requirement is met, no stock or ownership held in trust shall be counted, except in the following cases:

(1) Where both the trustee and the beneficiary are minorities, or both are women, or both are socially and economically disadvantaged individuals, and the trustee meets the control requirement; or

(2) Where the stock or ownership is held in an irrevocable trust for the benefit of a minority, a woman, or a socially and economically disadvantaged individual, and the minority, woman, or socially and economically disadvantaged beneficiary meets the control requirement.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-070, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-070, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-070, filed 10/28/83.

Wash. Admin. Code § 326-20-080 Factors considered in determining control.

(1) General rules.

(a) One or more socially and economically disadvantaged owners of the firm must control it.

(b) Control determinations must consider all pertinent facts, viewed together and in context.

(c) A firm must have operations in the business for which it seeks certification at the time it applies.

The office does not certify plans or intentions, or issue contingent or conditional certifications.

(2) Socially and economically disadvantaged owner as final decision maker. A socially and economically disadvantaged owner must be the ultimate decision maker in fact, regardless of operational, policy, or delegation arrangements.

(a) Governance. Governance provisions may not require that any socially and economically disadvantaged owner obtain concurrence or consent from a nonsocially and economically disadvantaged owner to transact business on behalf of the firm.

(i) Highest officer position. A socially and economically disadvantaged owner must hold the highest officer position in the company (e.g., chief executive officer or president).

(ii) Board of directors. A socially and economically disadvantaged owner must have present control of the firm's board of directors, or other governing body, through the number of eligible votes.

(A) Quorum requirements. Provisions for the establishment of a quorum must not block the socially and economically disadvantaged owner from calling a meeting to vote and transact business on behalf of the firm.

(B) Shareholder actions. A socially and economically disadvantaged owner's authority to change the firm's composition via shareholder action does not prove control within the meaning of this section.

(iii) Partnerships. In a partnership, at least one socially and economically disadvantaged owner must serve as a general partner, with control over all partnership decisions.

(iv) Exception. Bylaws or other governing provisions that require nonsocially and economically disadvantaged owner consent for extraordinary actions generally do not contravene the control rules of this section. Nonexclusive examples are a sale of the company or substantially all of its assets, mergers, and a sudden, wholesale change of type of business.

(b) Expertise. At least one socially and economically disadvantaged owner must have an overall understanding of the business and its essential operations sufficient to make sound managerial decisions not primarily of an administrative nature. These requirements vary with type of business, degree of technological complexity, and scale.

(c) Socially and economically disadvantaged owner decisions. To distinguish control, the firm must show that the socially and economically disadvantaged owner has authority, critically analyzes information, and uses that analysis to make independent decisions. The firm must also demonstrate that the eligible owner makes the business decisions not primarily of an administrative nature.

(d) Delegation. A socially and economically disadvantaged owner may delegate administrative activities or operational oversight to a non-SED individual as long as at least one socially and economically disadvantaged owner retains unilateral power to fire the delegate(s), and the chain of command is evident to all participants in the company and to all persons and entities with whom the firm conducts business.

(i) No non-SED participant may have power equal to or greater than that of a socially and economically disadvantaged owner, considering all the circumstances. Aggregate magnitude and significance govern; a numerical tally does not.

(ii) Non-SED participants may not make nonroutine purchases or disbursements, enter into substantial contracts, or make decisions that affect company viability without the socially and economically disadvantaged owner's consent.

(iii) Written provisions or policies that specify the terms under which non-SED participants may sign or act on the socially and economically disadvantaged owner's behalf with respect to recurring matters generally do not violate this paragraph, as long as they are consistent with the socially and economically disadvantaged owner having ultimate responsibility for the action.

(e) Franchise and license agreements. A business operating under a franchise or license agreement may be certified if it meets the standards in this subpart and the franchiser or licenser is not affiliated with the franchisee or licensee. In determining whether affiliation exists, the certifier should generally not consider the restraints relating to standardized quality, advertising, accounting format, and other provisions imposed on the franchisee or licensee by the franchise agreement or license, if the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. Alternatively, even though a franchisee or licensee may not be controlled by virtue of such provisions in the franchise agreement or license, affiliation could arise through other means, such as common management or excessive restrictions on the sale or transfer of the franchise interest or license.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-080, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-080, filed 6/7/19, effective 7/8/19
• WSR 04-08-093, § 326-20-080, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-080, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-12-060 (Order 88-5), § 326-20-080, filed 5/31/88
• WSR 87-18-030 (Order 87-6), § 326-20-080, filed 8/27/87. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-080, filed 10/28/83.

Wash. Admin. Code § 326-20-081 Independence.

Only an independent business may be certified. An independent business is one the viability of which does not depend on its relationship with another business or businesses.

(1) In determining whether a potential certified business is an independent business, the office must scrutinize relationships with noncertified businesses in areas such as personnel, facilities, equipment, financial or bonding support, and other resources.

(2) The office must consider whether present or recent employer and employee relationships between the disadvantaged owner(s) of the potential certifiable business and noncertified business or persons associated with noncertified businesses compromise the independence of the potential certifiable business.

(3) The office must examine the business's relationships with prime contractors to determine whether a pattern of exclusive or primary dealings compromises the independence of the potential certifiable business.

(4) In considering factors relating to the independence of a potential certifiable business, the office must consider the consistency of relationships between the potential certifiable business and noncertifiable businesses with normal industry practice.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-081, filed 6/7/19, effective 7/8/19. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-081, filed 5/11/92, effective 6/11/92
• WSR 89-24-047, § 326-20-081, filed 12/1/89, effective 1/1/90.

Wash. Admin. Code § 326-20-086 Native Americans—Native Hawaiians—Alaska native corporations.

(1) A firm owned by a Native American tribe, native Hawaiian organization, or Alaska native corporation, rather than by individuals, may be eligible for certification. Such a firm must meet the size standards of WAC 326-20-096 and be controlled by a socially and economically disadvantaged individual(s) per WAC 326-20-080.

(2) A firm owned by a Native American tribe, native Hawaiian organization, or Alaska native corporation will not be considered affiliated with other businesses owned by the tribe, organization, or corporation if there is a firewall, such as a legally binding mechanism, in place to prevent firms from accessing the resources of the tribe's, organization's, or corporation's other businesses.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-086, filed 6/7/19, effective 7/8/19.

Wash. Admin. Code § 326-20-087 Public works small business enterprise.

(1) To foster small business participation, a race and gender-neutral certification program is created to eliminate obstacles to small business participation.

(2) Public works small business is a race and gender-neutral certification program that does not require social disadvantage under WAC 326-20-046. Other certification criteria, such as proof of economic disadvantage, ownership, business size, and control are required to be eligible for this program.

(3) Whenever issues arise regarding eligibility based on personal net worth, business size, ownership, and control which cannot be resolved by reference to these regulations, 49 C.F.R. Part 26 shall provide guidance to resolve such issues.

History

• Statutory Authority: 2023 c 395. WSR 23-21-006, § 326-20-087, filed 10/4/23, effective 11/4/23.

Wash. Admin. Code § 326-20-088 LGBTQBE certification program.

(1) To foster small business participation, and to promote equity in state contracting while further recognizing the protected class status of LGBTQ, an LGBTQBE certification program is created.

(2) LGBTQBE certification program will require all other criteria included in state certification programs, including social disadvantage, economic disadvantage, ownership, control, and business size.

(3) Whenever issues arise regarding eligibility based on personal net worth, business size, ownership, and control which cannot be resolved by reference to these regulations, 49 C.F.R. Part 26 shall provide guidance to resolve such issues.

History

• Statutory Authority: RCW 39.19.030. WSR 25-14-093, s 326-20-088, filed 7/1/25, effective 8/1/25.

Wash. Admin. Code § 326-20-094 Assignment of North American Industry Classification System (NAICS) code.

The office must grant certification to a business only for specific types of work the disadvantaged owner(s) have the ability to control. To become certified in an additional type of work, the business needs to demonstrate its owner(s) are able to control the business with respect to that type of work. The office must not require the business to recertify or submit a new certification application but verify the disadvantaged owner(s) control of the business in the additional type of work.

(1) The types of work a business can perform, whether at initial certification or when a new type is added, must be described in terms of the most specific available North American Industry Classification System (NAICS) code for that type of work. In addition to applying the appropriate NAICS code, the office may apply a descriptor from a classification scheme of equivalent detail and specificity. A correct NAICS code is one describing, as specifically as possible, the principal goods or services the business would provide to the state. Multiple NAICS codes may be assigned when appropriate. The office must rely on, and not depart from, the plain meaning of NAICS code descriptions in determining the scope of a business's certification.

(2) Businesses and recipients must check carefully to make sure the NAICS codes cited in a certification are current and accurately reflect work the office has determined the business owners can control. The business bears the burden of providing detailed company information the office needs to make an appropriate NAICS code designation.

(3) If a business believes there is not a NAICS code that fully or clearly describes the type(s) of work in which it is seeking to be certified, the business may request the office, in its certification documentation, supplement the assigned NAICS code(s) with a clear, specific, and detailed narrative description of the type of work in which the business is certified. A vague, general, or confusing description is not sufficient for this purpose, and recipients must not rely on such a description in determining whether a business's participation can be counted toward goals.

(4) The office is not precluded from changing a certification classification or description if there is a factual basis in the record. However, the office must not make after-the-fact statements about the scope of a certification, not supported by evidence in the record of the certification action.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-094, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-094, filed 6/7/19, effective 7/8/19. Statutory Authority: RCW 39.19.030. WSR 04-08-075, § 326-20-094, filed 4/5/04, effective 5/6/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-094, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-09-047 (Order 88-5), § 326-20-094, filed 4/18/88.

Wash. Admin. Code § 326-20-098 Applicability of federal regulations.

Whenever issues arise regarding whether a business qualifies as a small business concern which cannot be resolved by reference to these regulations, 49 C.F.R. Part 26 shall provide guidance to resolve such issues.

History

• Statutory Authority: RCW 39.19.030. WSR 04-08-075, § 326-20-098, filed 4/5/04, effective 5/6/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-098, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-09-047 (Order 88-5), § 326-20-098, filed 4/18/88.

Wash. Admin. Code § 326-20-099 Small business concern requirement and size standards.

(1) In addition to meeting the ownership and control requirements of chapter 39.19 RCW, a business must qualify as a small business concern for certification eligibility or certification update.

(a) A small business concern is a business that is independently owned and operated, is not dominant in its field of operations, and does not exceed the size limitations as set forth in the current table of North American Industry Classification System (NAICS) codes or corresponding industry size standards as set forth in 49 C.F.R. Part 26 and amendments or inflationary adjustments thereof.

(b) The number of employees or amount of annual receipts listed as the size standard for each NAICS code indicates the maximum allowed for a business, including its affiliates, to qualify as a small business concern.

(c) The office's determination of whether a business qualifies as a small business concern must be, whenever possible, based on criteria consistent with the small business requirements defined under section 3 of the Small Business Act, 15 U.S.C. 632, and its implementing regulations, taking into consideration statewide markets.

(2) A business exceeding the small business size limits after certification by the office must be subject to graduation.

(3) At the time of application for certification and recertification, a business must demonstrate to the office that it is a small business concern. The office may verify the business is still a small business concern at any time after certification. In verifying the business's size, the office will review such financial documentation made available to the office, such as annual financial statements, federal income tax returns, state and local excise tax reports, and other relevant information.

(4) Except as otherwise provided in this chapter, affiliation occurs when either directly or indirectly:

(a) One business controls or has power to control the other;

(b) A third party or parties controls or has power to control both; or

(c) An "identity of interest" exists among them so the presumption of affiliation exists.

(5) When reference sets the maximum size standard to "annual receipts," a business exceeding the monetary figure in the standard is not eligible for certification. Annual receipts includes all revenue received or accrued from sources, such as sales of products or services, interest, dividends, rents, royalties, fees, or commissions, reduced by returns and allowances. The term "receipts" excludes proceeds from any of the following:

(a) Sales of capital assets and investments;

(b) Proceeds from transactions between a concern and its domestic and foreign affiliates;

(c) Proceeds from payments of notes receivable, accounts receivable, and amounts collected as an agent for another, such as gross bookings when a commission is earned, in which case only the commission earned constitutes revenue, and taxes collected for remittance to a taxing authority.

(6) The measurement period must comply with the following:

(a) The size of a business with three or more completed fiscal years will be determined by averaging the annual receipts of the business for the most recent three years;

(b) The size of a business with less than three fiscal years will be determined by computing the average of the annual receipts from the time the business formed, calculating total revenues compiled over the period divided by the number of weeks, including fractions of a week, multiplied by 52;

(c) Method of determining annual receipts. Revenue may be taken from the regular books of account of the concern. If the office so elects or the business has not kept regular books of account or the Internal Revenue Service has found such records to be inadequate and has reconstructed income of the concern, then revenue as shown on the federal income tax return of the concern may be used in determining annual receipts along with other information the office deems relevant.

(7) Where the size standard is "number of employees," size eligibility requires the concern may not exceed the number of employees in that standard.

(a) "Number of employees" means that average employment of the concern, including domestic and foreign affiliate employees, based upon employment during each of the pay periods for the preceding completed 12 calendar months.

(b) In computing average employment, part-time and temporary employees count as full-time employees for each applicable pay period.

(c) If a concern has not been in business for 12 months, "number of employees" means the average employment of the concern, including its affiliates, during each of the pay periods during which it has been in business.

(8) No business, regardless of its primary NAICS code, is eligible for certification if it exceeds the largest annual revenue limit contained in 49 C.F.R. Part 26 and any amendments or inflationary adjustments thereof.

(9) In determining the business's primary industry, including its affiliates, the office must consider the distribution of receipts, employees, and costs in the differing industry areas the business operated during its most recently completed fiscal year. Other factors, such as patents, contract awards, and assets, may be considered.

(10) If the activities of the business encompass two or more NAICS codes, the first NAICS code listed in the directory is the primary industry classification of the business.

(11) A business exceeding the small business size limits after certification by the office must be subject to graduation.

(12) For purposes of utilization on projects funded by any operating modal of the U.S. Department of Transportation the maximum dollar size standard in 49 C.F.R. Part 26 as may be amended or adjusted for inflation, must apply, even if the size standard would otherwise be set by reference to number of employees. This standard is a maximum. Certified businesses are still subject to applicable lower limits on business size as established by the United States Small Business Administration and these regulations.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-099, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, § 326-20-099, filed 6/7/19, effective 7/8/19.

Wash. Admin. Code § 326-20-110 Application process.

(1) The office will develop and make available an application form for certification under chapter 39.19 RCW, and WAC 326-20-010. The application form may be modified at any time. The form will solicit enough information to determine whether the applicant is eligible for certification for state-funded projects and may include supplemental questions necessary to determine whether the applicant is eligible for certification for a specific federally funded project. As part of its investigation, the office may require minority, women, and socially and economically disadvantaged owners to provide information in addition to that requested on the application forms.

(2) Where additional information is required from the applicant business to complete the investigation, the office may request the information in writing and may impose a time limit of not more than twenty days in which the applicant must respond. The letter shall include notice to the applicant that, if the applicant fails to provide the information within the time requested, the file will be closed administratively. If all the requested information is not received by the office within the twenty days, the office may administratively close the file. The applicant will be notified in writing that the file has been administratively closed.

(3) Upon timely receipt of a written request for extension of the time to respond to the request for additional information, an extension of time to respond may be granted by the director. A showing of extenuating circumstances may be required, and granting of such request for extension is in the sole discretion of the director.

(4) Administrative closure means that the file is placed in inactive status, and further processing of the application is suspended. An applicant may petition the office for reopening or reactivation of the application file, by written request to the director. Requests to reopen will be granted in the sole discretion of the director. The applicant will be notified in writing of the director's decision to grant or deny the request to reactivate the file. If the request is denied, the applicant may submit a new application: Provided, That an applicant may not file more than one additional application within a year from the date of the closure. If the file is administratively reopened and processing resumed, the application will be processed as if it had been received on the date the request to reopen the file is granted by the director.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-110, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-110, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 86-17-018 (Order 86-2), § 326-20-110, filed 8/11/86. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-110, filed 10/28/83.

Wash. Admin. Code § 326-20-125 Processing fee.

The office shall charge a nonrefundable fee for certification or recertification based upon the legal organizational structure of the business, as follows: Fifty dollars for a sole proprietorship, $75 for a partnership (general or limited), and $100 for all other legal organizational structures; e.g., corporation or limited liability company: Provided, however, That the office shall only charge a $25 fee when the application requests DBE-only certification or recertification for all business legal organizational structures. The office shall also charge a nonrefundable $20 fee for processing annual updates for all business legal organizational structures. The business must submit the fee with the application for certification, recertification, or annual update. The business applying for DBE-only certification may request a waiver of the fee. The request for fee waiver must be submitted to the office in writing. The office will review the request and make a determination in accordance with the Washington state department of transportation (WSDOT) DBE plan. An application is not deemed to be received by the office until the required fee is received by the office or the request of waiver of the fee has been approved by the office. The office may waive processing fees for the purpose of reducing barriers to certification. When the office waives fees, the office will publish notice of the conditions and duration of the waiver prominently on its website.

History

• Statutory Authority: RCW 39.19.210 and 39.19.030. WSR 23-05-062, § 326-20-125, filed 2/13/23, effective 3/16/23. Statutory Authority: RCW 39.19.210. WSR 04-08-074, § 326-20-125, filed 4/5/04, effective 5/6/04. Statutory Authority: RCW 39.19.030. WSR 94-11-115, § 326-20-125, filed 5/18/94, effective 6/18/94. Statutory Authority: 1993 c 195. WSR 93-16-080, § 326-20-125, filed 8/3/93, effective 9/3/93.

Wash. Admin. Code § 326-20-130 Processing applications—Time.

The office will process all applications as promptly as its resources permit. The office does not guarantee that any application will be processed within any certain time period and the inability to process an application by a certain time shall not subject the office or the state to liability.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-130, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-130, filed 10/28/83.

Wash. Admin. Code § 326-20-140 Duty to cooperate.

The owners shall have the duty to cooperate fully in the office's investigation of the application, including promptly submitting any additional information requested by the office. This duty shall continue after the business is certified. In addition to any other penalties provided by law, the submission of false information to the office in connection with an application for certification or renewal of certification shall be grounds for denial of certification, or decertification.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-140, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-20-140, filed 10/24/88. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-140, filed 10/28/83.

Wash. Admin. Code § 326-20-150 On-site investigations.

The office may, whenever it deems necessary, conduct unannounced on-site investigations into the operations of a business. By submitting the certification application form, an applicant agrees that the office may conduct such investigations at any time. On-site reviews may be conducted in-person or virtually.

History

• Statutory Authority: RCW 34.05.353 (1)(b). WSR 25-01-023, s 326-20-150, filed 12/6/24, effective 1/6/25. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-150, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-150, filed 10/28/83.

Wash. Admin. Code § 326-20-160 Burden of proof.

The applicant has the burden of proving by a preponderance of the evidence that the applicant is eligible for certification or renewal of certification.

History

• Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-160, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-160, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-160, filed 5/11/92, effective 6/11/92. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-160, filed 10/28/83.

Wash. Admin. Code § 326-20-170 Decision.

The office shall notify the applicant business of its decision to grant or deny certification promptly after the decision has been made. The decision shall indicate whether the certification is for the state program, a federal program or both. Where the office has denied the application, the decision shall set forth the bases for denial. Where the office has denied certification because the business did not meet one or more of the eligibility criteria, this shall not preclude the office from later denying the application on additional bases after further review.

History

• Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-170, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-170, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 85-07-006 (Order 85-2), § 326-20-170, filed 3/8/85. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-170, filed 10/28/83.

Wash. Admin. Code § 326-20-171 Denial of certification—Brief adjudicative proceeding.

(1) If the office has reached the conclusion that an application for certification should be denied, the office shall notify the applicant in writing of its denial of certification. Within twenty days of receipt of this notification, the applicant may request a brief adjudicative proceeding under WAC 326-08-012, Application for and conduct of brief adjudicative proceedings. The written request for a review of the decision must contain the information specified in subsection (2) of this section.

(2) A request for brief adjudicative proceeding must set forth in detail the reasons the applicant believes the office's decision to deny certification is in error and include any additional information and documentation the applicant has to offer.

(3) When an applicant requests a brief adjudicative proceeding, the finality of the denial for appeal purposes is stayed until the brief adjudicative proceeding is complete.

(4) Upon receipt of a timely request for a brief adjudicative proceeding the office will review any additional information provided by the applicant, and may conduct further investigation, and/or schedule a meeting with the applicant.

(5) The office will notify the applicant in writing of its decision either to affirm the denial or to grant certification.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-20-171, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-171, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-09-047 (Order 88-5), § 326-20-171, filed 4/18/88
• WSR 86-17-018 (Order 86-2), § 326-20-171, filed 8/11/86.

Wash. Admin. Code § 326-20-172 Decertification of firms.

(1) A business may be decertified at any time the office determines that the business does not meet the current criteria for eligibility. A certified business shall notify the office, in writing, within thirty calendar days of any changes in its size, ownership, control, or operations. Failure to provide such notice in a timely manner may lead to decertification.

(2) When the office has determined that a certified business (a) no longer meets the certification criteria or (b) failed to supply additional information requested by the office in a timely manner, or (c) failed to give timely notice of changes, the office will provide the business with written notice of decertification.

(3) When a certified business notifies the office that it is no longer in business, has sold the business, or no longer wishes to remain certified, or when the certified business fails or refuses to return the renewal of certification form, the office will notify the business in writing of its decertification.

(4) Upon receipt of a notice of decertification letter, the business may request a brief adjudicative proceeding under WAC 326-08-012, Application for and conduct of brief adjudicative proceedings.

The request for brief adjudicative proceeding must be received by the office within twenty calendar days of receipt of the notice of decertification to the firm. The request for a brief adjudicative proceeding must set forth the reasons the business believes the office's decision to decertify is in error and must include any additional information and documentation the business has to offer.

(5) If the office has not received a request for a brief adjudicative proceeding nor any additional written documentation within twenty days of receipt of the notice of decertification letter, the decision to decertify becomes final, with no further rights to contest or appeal the decision.

(6) Upon receipt of the request for a brief adjudicative proceeding, the office will review the request and any additional information provided and may conduct further investigation and/or request that the owner(s) attend the brief adjudicative proceeding. The office will thereafter notify the business in writing of its decision to either affirm or reverse the firm's decertification.

(7) If the decision to decertify is appealed, the business shall remain certified until:

(a) The time provided by WAC 326-08-012 for appeal of the decision to decertify has expired without action by the business; or

(b) The entry of a final decertification order issued by the director pursuant to WAC 326-08-130.

(8) Decertification shall be effective immediately upon the occurrence of (a) or (b) of this subsection, and will not be stayed pending review by any court.

History

• Statutory Authority: RCW 39.19.030. WSR 11-11-030, § 326-20-172, filed 5/11/11, effective 6/11/11. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-172, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-09-047 (Order 88-5), § 326-20-172, filed 4/18/88
• WSR 86-17-018 (Order 86-2), § 326-20-172, filed 8/11/86.

Wash. Admin. Code § 326-20-173 Expiration of certification upon death or disability of owner of certified business.

(1) Upon death or commencement of long-term disability of the minority, woman, or socially and economically disadvantaged owner of a certified business, the guardian of the disabled owner, the executor of the owner's estate, or other person shall notify the office in writing within thirty days of the death or documented disability. All notifications of long-term disability shall be documented by a statement from a qualified physician.

(2) "Long-term disability," for purposes of this section, shall mean the permanent inability to work, or inability to control the day-to-day operations of the business for a period of three consecutive months (ninety days or more), including both mental or physical incompetence.

(3) The certification of a business shall expire thirty days after receipt by the office of a notice of a death or documented disability of the owner of the business. Upon expiration of certification, the office shall notify the firm, in writing, that it has been decertified. The decertification decision will be considered final for purposes of WAC 326-08-015.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 04-08-093, § 326-20-173, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-173, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-22-017 (Order 88-9), § 326-20-173, filed 10/24/88.

Wash. Admin. Code § 326-20-180 Effect of certification.

Certification by OMWBE under the state program shall have the following effects:

[(1) Certification shall entitle state agencies, educational institutions, and local government jurisdictions to count the business toward meeting their goals under this chapter, local legislation, and that require the participation of disadvantaged business enterprises. Certification shall be effective as of the date the decision is made in writing and will remain in effect for three years; except that the certification of DBEs shall be updated annually.

(2) Certification does not constitute compliance with any other laws or regulations, including contractor registration or prequalification, and does not relieve any business of its obligations under other laws or regulations. Certification does not constitute any determination by the office that the firm is responsible or capable of performing any work.]

(3) Certification as a minority business enterprise (MBE), minority woman [women's] business enterprise (MWBE), women's business enterprise (WBE), or combination business enterprise (CBE) satisfies the threshold requirement for a qualifying loan under RCW 43.86A.060 (2)(c).

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules, and deems ineffectual changes not filed by the agency in this manner. The bracketed material in the above section does not appear to conform to the statutory requirement.

Wash. Admin. Code § 326-20-185 Renewal.

(1) State certification is valid for three years, unless:

(a) The office decertifies the firm; or

(b) The firm goes out of business or has a material change in ownership, which is considered more than a ten percent change in ownership.

(2) If the applicant submits a declaration of continued eligibility as outlined in subsection (5) of this section, the certification will remain valid during the time the office processes the affidavit and until the office notifies the firm of its decision.

(3) The office will generally renew the certification as long as the business continues to meet the eligibility criteria; the business provides evidence of some level of activity e.g., gross receipts or evidence of continuing efforts to promote the business; and there have been no determinations that the business has violated chapter 39.19 RCW or its implementing rules in Title 326 WAC.

(4) Debarment of a business by the state or one or more federal agencies or local government jurisdictions may be grounds for nonrenewal of certification.

(5) Each certified business must submit a declaration of continued eligibility prior to the date of its three-year certification. The declaration form will be provided to the certified business at least sixty days before the date of its three-year certification. Failure to return the completed form within thirty days may lead to nonrenewal of certification.

(a) The office may ask for additional information or documentation on a case-by-case basis.

(b) For the first renewal after the enactment of this subsection, each eligible owner must submit a personal financial statement as outlined in WAC 326-20-049.

History

• Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-185, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-185, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 88-09-047 (Order 88-5), § 326-20-185, filed 4/18/88
• WSR 85-07-006 (Order 85-2), § 326-20-185, filed 3/8/85.

Wash. Admin. Code § 326-20-190 Directory of certified businesses.

The office will maintain a directory of businesses certified by the office for state projects and for federally funded projects.

History

• Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-190, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-190, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 85-07-006 (Order 85-2), § 326-20-190, filed 3/8/85. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-190, filed 10/28/83.

Wash. Admin. Code § 326-20-220 Resubmission of applications.

(1) A business which withdraws its application and subsequently reapplies for certification within a year may be required to submit a new application and additional documentation at the discretion of the office. A business may not file more than two applications in any calendar year.

(2) A business which is denied certification, or has been decertified, will be required to submit a new application and may be asked to submit additional documentation. The office may waive the reapplication requirement for good cause.

(3) An applicant must wait one calendar year to reapply if denied certification.

(4) A business which makes a change in ownership, control, or organization of the business after denial or decertification is not entitled to appeal the denial or decertification on the basis of that change.

History

• Statutory Authority: RCW 39.19.030. WSR 17-13-020, § 326-20-220, filed 6/12/17, effective 8/1/17. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-20-220, filed 5/11/92, effective 6/11/92. Statutory Authority: Chapter 39.19 RCW. WSR 86-17-018 (Order 86-2), § 326-20-220, filed 8/11/86. Statutory Authority: 1983 c 120 § 3(7). WSR 83-22-045 (Order 83-3), § 326-20-220, filed 10/28/83.

Wash. Admin. Code § 326-20-230 Factors considered in determining performance of commercially useful function.

(1) A business performs a commercially useful function when:

(a) The work to be performed by the business is within the scope of work included in the North American Industrial Classification System code(s) that the business is certified under or applying to be certified under.

(b) The business is or will be responsible for executing a distinct element of work in the performance of a contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved; and

(c) The business is responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (when applicable) and paying for the material itself.

(2) A business does not perform a commercially useful function when:

(a) Its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of participation. The agency will consider similar transactions in which certified firms do not participate to evaluate standard industry practice.

(b) It does not exercise responsibility for at least thirty percent of the total cost of its contract with its own workforce, or it subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved.

History

• Statutory Authority: RCW 39.19.030 and 39.19.120. WSR 19-13-014, amended and recodified as § 326-20-230, filed 6/7/19, effective 7/8/19
• WSR 04-08-093, § 326-02-045, filed 4/6/04, effective 5/7/04. Statutory Authority: RCW 39.19.030(7). WSR 92-11-007, § 326-02-045, filed 5/11/92, effective 6/11/92.

Chapter 326-30 Goals and goal setting.

Wash. Admin. Code § 326-30-010 Purpose.

The purpose of chapter 120, Laws of 1983 and of this chapter is to provide the maximum practicable opportunity for increased participation by minority and women-owned businesses in public works contracts and in contracts for the procurement of goods and services from the private sector for state agencies and educational institutions.

These rules set forth the procedures by which individual contract goals and the overall annual goals for participation of certified business enterprises are set and reviewed; and the procedures to be used by the office in monitoring compliance.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-30-010, filed 10/6/92, effective 11/6/92. Statutory Authority: 1983 c 120. WSR 84-03-005 (Order 83-7), § 326-30-010, filed 1/5/84.

Wash. Admin. Code § 326-30-020 Scope.

This chapter applies to all public works, personal service contracts, and procurement from the private sector of goods and services by state agencies and educational institutions not expressly exempted or excluded by this chapter.

These rules do not pertain to agency/educational institution expenditures such as: Amortization; debt service; depreciation; employee benefits including but not limited to mileage, per diem, relocation expenses, and salaries; per diem for prospective state employees, members of institutions' boards and agencies' commissions; postage; relocation expenses for prospective employees; and transfers of charges.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-30-020, filed 10/6/92, effective 11/6/92. Statutory Authority: 1983 c 120. WSR 84-03-005 (Order 83-7), § 326-30-020, filed 1/5/84.

Wash. Admin. Code § 326-30-030 Procedure for setting overall annual goals.

The director of the office of minority and women's business enterprises will establish overall annual goals for participation in state contracts by qualified MBEs and WBEs for all state agencies and educational institutions. The annual period shall be the state fiscal year. The goals will be a percentage of the reporting base which includes all expenditures for public works, personal services, and for the procurement of goods and services by state agencies and educational institutions.

(1) Time for establishment of goals. The overall annual goals will be adopted each year by June 15.

(2) Distribution. The overall annual goals will be distributed to the head of each agency and educational institution on or before June 30 each year.

(3) Process used to establish goals. The director will review the overall annual goals each year and establish goals for the upcoming year. In establishing the new goals, the director shall consider the following categories of information, to the extent that such data is reasonably obtainable: (a) The number of certified businesses available to perform work in each class of contract; (b) the state's success in attaining goals over the last year; (c) information regarding the percentage of available MBEs and WBEs as compared to the percentage of dollars awarded to MBEs and WBEs, per class of contract; (d) information indicating discrimination against minority and women-owned businesses in each class of contract; (e) and such other relevant information as may be available.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079 and 92-20-124, § 326-30-030, filed 10/6/92 and 10/7/92, effective 11/6/92 and 11/7/92
• WSR 90-06-040, § 326-30-030, filed 3/1/90, effective 4/1/90. Statutory Authority: 1983 c 120. WSR 84-03-005 (Order 83-7), § 326-30-030, filed 1/5/84.

Wash. Admin. Code § 326-30-041 Annual goals.

The annual overall goals for participation by certified firms in the public works, other contracting, and procurement of each state agency and educational institution, subject to this chapter, shall be as follows:

July 1, 2000, through June 30, 2001,

History

• Statutory Authority: RCW 39.19.030(7). WSR 00-17-059, § 326-30-041, filed 8/9/00, effective 9/9/00
• WSR 98-20-005, § 326-30-041, filed 9/24/98, effective 10/25/98
• WSR 97-16-073 § 326-30-041, filed 8/4/97, effective 9/4/97
• WSR 96-14-064, § 326-30-041, filed 6/28/96, effective 7/29/96
• WSR 95-19-014, § 326-30-041, filed 9/7/95, effective 10/8/95
• WSR 95-10-086, § 326-30-041, filed 5/3/95, effective 6/3/95
• WSR 94-03-068, § 326-30-041, filed 1/14/94, effective 2/14/94
• WSR 92-20-079, § 326-30-041, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-30-046 Procedures for setting goals on individual transactions.

Each agency and educational institution shall establish goals for the participation of MBEs and WBEs on individual purchases and contracts. Factors to be considered include, but are not limited to:

(1) The number of MBEs and WBEs available to perform work in the contract;

(2) The agency/educational institution's success in attaining goals during the current year;

(3) Whether there is an opportunity to facilitate the entry of certified businesses into industries in which such firms are underrepresented.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-30-046, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-30-051 Counting participation toward agency and educational institution goals.

The office will count an agency's or educational institution's expenditures to certified businesses toward goal attainment as follows:

(1) Prime contractors and consultants.

(a) Where a certified business performs a commercially useful function in the work of the contract, the dollar value of expenditures to the business for such work will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(b) Where a certified business is a partner in a joint venture, and the business performs a commercially useful function in the work of the contract, only the dollar value of expenditures to the certified business which is commensurate with its interest in the joint venture will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(2) Subcontractors and subconsultants.

(a) Where a certified business performs a commercially useful function in the work of a subcontract, the dollar value of expenditures to the business for such work will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(b) Where a certified business is a subcontractor on a heavy construction, highway, or street construction project, expenditures to the certified business shall not be counted toward goal attainment if the business subcontracts more than twenty-five percent of the total amount of its own subcontract to a noncertified business.

(3) Suppliers.

Where a certified business is the manufacturer or a regular dealer of goods or materials required under a contract, one hundred percent of the dollar value of expenditures to the business for such materials or supplies will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(4) Where a certified business is a broker of goods or materials required under a contract, effective June 6, 1996, the value of the goods or materials will not be counted. Only the dollar value of the fee or commission charged or twenty percent (five percent in the case of food brokers) of the dollar value of expenditures to the business, whichever is greater, will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(5) Where a certified business is a hauler, trucker, or delivery service, but is not also a regular dealer or the manufacturer of the goods or materials required on the job site, the dollar value of expenditures to the business for fees charged to deliver the goods or materials required will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(6) Where a certified business provides bonds or insurance specifically required for the performance of a contract, the dollar value of expenditures to the business for the fee or commission charged for providing the bonds or insurance will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

(7) Where a certified business is a travel agency or other business performing similar functions, twenty percent of the dollar value of expenditures to the business to provide a bona fide service in the procurement of transportation will be counted toward the agency or educational institution's goal attainment according to the certification status of the business.

History

• Statutory Authority: RCW 39.19.030(7). WSR 96-24-085, § 326-30-051, filed 12/3/96, effective 1/3/97
• WSR 94-07-064, § 326-30-051, filed 3/14/94, effective 4/14/94
• WSR 92-20-079 and 92-20-124, § 326-30-051, filed 10/6/92 and 10/7/92, effective 11/6/92 and 11/7/92.

Wash. Admin. Code § 326-30-061 Effect of decertification, after commencement of work, on counting participation.

(1) Where a certified business is decertified after it has begun work on a contract, for reasons other than having exceeded the size standard, only the dollar value of expenditures to the business made prior to the date of decertification plus sixty days will be counted toward the agency's or educational institution's overall annual goal attainment.

(2) Where a certified business is decertified because it was found to exceed the size standard after it has begun work on a contract, the dollar value of all expenditures to the business for work which constitutes a commercially useful function until the completion of that contract will be counted toward the agency's or educational institution's overall annual goal attainment.

(3) Where a certified business is decertified pursuant to WAC 326-20-173, i.e., because of the owner's death or disability, the dollar value of all expenditures to the business prior to the date of decertification plus sixty days will be counted toward the agency's or educational institution's overall annual goal attainment: Provided, That the business performed a commercially useful function in the contract.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-124, § 326-30-061, filed 10/7/92, effective 11/7/92.

Wash. Admin. Code § 326-30-110 Monitoring of compliance with chapter 39.19 RCW.

The office will monitor the performance of each state agency and educational institution and generate periodic status reports for their internal use from data developed pursuant to WAC 326-40-050.

The office will issue a report annually on the total expenditures of the state and the dollars expended with certified businesses by each agency and educational institution. The report will include the percentage paid to certified businesses. The report will be provided to the governor and the legislature as required by RCW 39.19.030(8).

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-124, § 326-30-110, filed 10/7/92, effective 11/7/92. Statutory Authority: 1983 c 120. WSR 84-03-005 (Order 83-7), § 326-30-110, filed 1/5/84.

Chapter 326-40 Agency/educational institution operating procedures.

Wash. Admin. Code § 326-40-030 State agency and educational institution responsibilities.

Each state agency and educational institution shall:

(1) Adopt, update as necessary, and implement a plan for achieving the annual class of contract goals and ensuring that certified businesses are afforded the maximum practicable opportunity to directly and meaningfully participate in its contracts for public works and the procurement of goods, equipment, and services. The initial plan shall be filed with the office to be effective July 1, 1993.

(2) Monitor its contractors and vendors at time of bid, proposal, or quote submittal, and after award, and take the appropriate action(s) as needed to enforce compliance with requirements set pursuant to chapter 39.19 RCW and the provisions of Title 326 WAC.

(3) Waive the requirement for a performance bond on any public works project that does not exceed twenty-five thousand dollars awarded to a business certified by the office; Provided, That the agency or educational institution prequalifies the business using a limited questionnaire which assures:

(a) That the bidder has adequate financial resources or the ability to secure such resources;

(b) That the bidder can meet the performance schedule;

(c) That the bidder is experienced in the type of work to be performed; and

(d) That all equipment to be used is adequate and functioning and that all equipment operators are qualified to operate such equipment.

(4) Cooperate with the office and provide timely access to records and information as needed for the conduct of investigations or the preparation of reports.

(5) Make available to the office, expenditure data in such form and frequency as required in WAC 326-40-050.

History

• Statutory Authority: RCW 39.19.030. WSR 94-11-118, § 326-40-030, filed 5/18/94, effective 6/18/94. Statutory Authority: RCW 39.19.030(7). WSR 92-20-079 and 92-20-124, § 326-40-030, filed 10/6/92 and 10/7/92, effective 11/6/92 and 11/7/92.

Wash. Admin. Code § 326-40-040 Contents of state agency and educational institution's plan.

(1) Each plan shall include the following:

(a) A statement of commitment from the director or agency head to achieve the state's annual class of contract goals and to maximize opportunities for certified businesses to contract for public works and provide goods, equipment, and services;

(b) Identification of the person given the responsibility and authority to ensure implementation of the plan; and

(c) A listing of specific measures the agency or educational institution will take to increase participation of certified businesses.

(2) In addition to the requirements in paragraph (1) of this section, the plan for agencies with one hundred or more employees shall include detailed procedures for the following:

(a) Communicating the policy and appropriate procedures to all staff;

(b) Training of staff involved in implementation;

(c) Annual forecasting of contracting, procurement, other expenditure activity, and goalsetting by class of contract;

(d) Setting individual contract goals;

(e) Monitoring and ensuring compliance of contractors and vendors;

(f) Maintenance of records regarding contract awards, purchase orders, and other expenditures as required in this chapter;

(g) Regular provision of data to the office on all expenditures as required in WAC 326-40-050;

(h) Resolving disputes and investigating complaints; and

(i) Review and revision of contracting and procurement documents, policies, and practices which hinder or create barriers to successful implementation of the plan.

History

• Statutory Authority: RCW 39.19.030. WSR 94-11-119, § 326-40-040, filed 5/18/94, effective 6/18/94. Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-40-040, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-40-050 Agency and educational institution reporting.

(1) Each agency and educational institution is required to provide data to the office on all expenditures not specifically exempted or excluded by this chapter. The data shall be provided monthly on a schedule that corresponds to the schedule established by the office of financial management (OFM) for the transmission of data related to the state's financial statement.

(2) The format of the data shall be as follows:

(a) Expenditure type identifier (1, 2, or 3).

(b) Agency/educational institution number.

(c) Contractor/vendor name.

(d) Contractor/vendor federal tax number.

(e) OFM-defined subobject code.

(f) Dollar amount to contractor/vendor.

(g) Contract number (when applicable).

(h) Date.

(i) Biennium.

(3) Statutory exemptions. In accordance with RCW 39.19.060, agencies and educational institutions will not be required to provide data on expenditures in the following object codes:

A - salaries and wages

B - employee benefits

P - debt service

S - interagency reimbursements

T - intra-agency reimbursements

W - depreciation, amortization, and bad debts

(Proprietary Funds Only)

X - ofm adjustments to agency data

(4) General exclusions. Agencies and educational institutions shall provide data on expenditures in certain subobjects for goods and services which are generally not obtained from the private, for-profit sector. Expenditures of this type will be excluded from the participation base in the calculation of goal attainment.

(5) Exceptions. Certain additional subobjects contain expenditures that legitimately should not be included in the formula for calculating goal attainment. The office shall provide specific guidance annually on the affected subobjects and the procedure to be followed by agencies and educational institutions for crediting such expenditures.

(6) The OFM-defined chart of accounts will be the source of definitions for objects and subobjects. The office shall provide specific guidance annually on the subobjects of expenditures required to be included in the data provided to the office.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-40-050, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-40-060 Determining compliance and counting participation at time of bid opening.

(1) When a contract is to be awarded to a certified business that performs a commercially useful function as the prime contractor/consultant/vendor, the total contract value may be counted toward the contract goal according to the certification status of the business as follows:

(a) Minority business enterprise (MBE): One hundred percent toward the MBE goal;

(b) Women's business enterprise (WBE): One hundred percent toward the WBE goal;

(c) Minority woman business enterprise (MWBE): One hundred percent toward the MBE goal or the WBE goal, but not both;

(d) Combination business enterprise (CBE): Fifty percent toward the MBE goal and fifty percent toward the WBE goal. This procedure is to be used when the contract contains an either/or goal or separate goal requirements. When the contract contains only an MBE requirement or a WBE requirement, only one-half of the dollar value of the CBE's total participation may be counted toward the single goal. A state agency or educational institution will receive credit for the remaining fifty percent toward its annual goal attainment.

(2) When a contract is to be awarded to a joint venture that is approved pursuant to WAC 326-40-100, the dollar value of the portion of the work performed by the certified business may be counted, on a percentage basis, toward the contract goal as set forth in subparagraphs (1)(a-d) of this section; provided, the certified business performs a commercially useful function in the work of the contract.

(3) Subcontractors and subconsultants.

(a) When a certified business performs a commercially useful function as a subcontractor or subconsultant, the dollar value of the work performed by the certified business may be counted toward the contract goal as set forth in subparagraphs (1)(a-d) of this section.

(b) When a certified business is awarded a subcontract on a heavy construction, highway, or street construction project, expenditures to the certified business shall not be counted toward the contract goal if the business subcontracts more than twenty-five percent of the total amount of its own subcontract to a noncertified business.

(4) Suppliers.

Where a certified business is the manufacturer or a regular dealer of materials or supplies required under a contract, one hundred percent of the dollar value of the materials or supplies to be provided may be counted toward the contract goal according to the certification status of the business.

(5) Brokers.

Where a certified business is a broker of goods, materials or supplies required under a contract, effective June 6, 1996, the value of the goods, materials, or supplies will not be counted. Only the dollar value of the fee or commission charged or twenty percent of the total dollar value (five percent for food brokers) of the goods, materials, or supplies required for performance of the contract, whichever is greater, may be counted toward the contract goal according to the certification status of the business.

(6) Where a certified business is a hauler, trucker, or delivery service, but not also a regular dealer or the manufacturer of the materials or supplies required on the job site, only the dollar value of the fees charged to deliver the materials or supplies required may be counted toward the contract goal according to the certification status of the business.

(7) Where a certified business is a travel agency, or other business performing similar functions, twenty percent of the dollar value charged for providing a bona fide service in the procurement of transportation may be counted toward the contract goal according to the certification status of the business.

(8) Where a certified business provides bonds or insurance specifically required for the performance of a contract, the dollar value charged for providing the bonds or insurance may be counted toward the contract goal according to the certification status of the business.

History

• Statutory Authority: RCW 39.19.030(7). WSR 96-24-085, § 326-40-060, filed 12/3/96, effective 1/3/97
• WSR 94-07-064, § 326-40-060, filed 3/14/94, effective 4/14/94
• WSR 92-20-079 and 92-20-124, § 326-40-060, filed 10/6/92 and 10/7/92, effective 11/6/92 and 11/7/92.

Wash. Admin. Code § 326-40-070 Determination of commercially useful function.

Whether the work to be performed by a certified business listed in a bid or proposal to a state agency or educational institution is a commercially useful function, as defined in WAC 326-02-030(5), shall be determined by the state agency or educational institution making the award.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-40-070, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-40-080 Substitutions in contracts requiring participation of certified businesses.

(1) prime contractor, vendor, or consultant substitution.

(a) Prior to award of the contract: Where a certified business that is the apparent low bidder is decertified or indicates it is unable or unwilling to perform the contract prior to the award of the contract, the state agency or educational institution may follow its usual procedures for awarding to the next apparent low bidder, require the contractor to meet goals by obtaining other certified businesses, or rebid.

(b) After award of the contract to a certified prime contractor, vendor, or consultant, but prior to the start of the work: Where the business is decertified or indicates that it is unable or unwilling to perform the work after award of the contract, the agency or educational institution may follow its usual procedures for awarding to the next apparent low bidder, require the contractor to meet goals by obtaining other certified businesses, or rebid. The agency or educational institution, may, in its discretion, determine whether an increase in the amount of the contract will be allowed based on the substitution.

(c) After start of work by a certified prime contractor, vendor, or consultant, but prior to completion:

(i) Where the business is decertified after commencing the work and the agency or educational institution determines that substitution is impractical, the decertified contractor may continue to perform the work.

(ii) Where a certified prime contractor is unable or unwilling to complete the work, the agency or educational institution shall follow its usual procedures to seek performance of the contract, including the imposition of penalties or sanctions authorized by the contract and may pursue all other remedies allowed by law.

(2) subcontractor or subconsultant substitution.

(a) Prior to award of the contract: Where a certified business, selected as a subcontractor or subconsultant to meet the bid specifications, is decertified or indicates it is unable or unwilling to perform the work, the agency or educational institution shall require the contractor or consultant to substitute another certified business in the appropriate category, to meet the contract specifications. The replacement firm may perform the same work or a different part of the work.

(b) After award of the contract but prior to start of work by the prime contractor or consultant: Where a certified business, selected as a subcontractor or subconsultant to meet the bid specifications, is decertified or indicates it is unable or unwilling to perform the work, the agency or educational institution may require the contractor or consultant to substitute another certified business in the appropriate category to meet the contract specifications as stated in the original bid. The replacement firm may perform the same work or a different part of the work. The agency or educational institution, may, in its discretion, determine whether an increase in the amount of the contract will be allowed based on the substitution.

(c) After start of the work but prior to completion by the prime contractor or consultant: Where a certified business, selected as a subcontractor or subconsultant to meet the bid specifications, is decertified or indicates it is unable or unwilling to complete the work after the work has been started by the prime contractor or consultant, and the agency or educational institution determines it to be impractical to substitute another certified business to perform that work or any other portion of the work at that point, then the contractor or consultant shall not be required to substitute.

(3) remedies. In the event of default by a bidder or contractor, the educational institutions and agencies retain the right to pursue appropriate legal remedies. Nothing herein shall be construed to give any business the right to unilaterally withdraw its bid or terminate the contract.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-40-080, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-40-090 Timely certification.

Where competitive bidding is utilized, only businesses certified at the time of the submission of bids or proposals may be counted toward individual contract goals. Where competitive bidding is not utilized, only businesses certified at the time of award may be counted: Provided, That businesses participating under the provisions in WAC 326-40-080 may also be counted.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079, § 326-40-090, filed 10/6/92, effective 11/6/92.

Wash. Admin. Code § 326-40-100 Joint venture approval.

(1) Requests for approval. Any joint venture involving a certified business which is to be counted toward contract participation goals shall request approval from the awarding state agency or educational institution. The request must:

(a) Be in writing;

(b) Be accompanied by a written joint venture agreement that conforms to the requirements of subsection (2) of this section; and

(c) Contain a statement that gives the approving agency or educational institution authority to audit the joint venture.

(2) Contents of joint venture agreement.

(a) The joint venture agreement must be signed under oath by each of the joint venturers. It shall specify the capital contribution made by each joint venturer, the control each will exercise, and the distribution of profit and loss. Each of these elements must be allocated in proportion to their contribution.

(b) The joint venture agreement must also identify the part of the work each joint venturer will do, which participant(s) are certified businesses, and their certification status. The work to be performed by the certified participant must be a commercially useful function.

(3) Time of request. A request for approval of a joint venture must be submitted and approved before the time fixed for bid opening for all contracts. If the joint venture is not approved, the agency shall award to the lowest responsive bidder or rebid.

(4) Effect of approval. An approved joint venture is approved only for one specific contract. Disbursement of funds to a certified business that is participating in an approved joint venture shall be counted toward contract goals in accordance with the provisions of WAC 326-40-060 (1)(e).

(5) Investigation. The agency or educational institution may request additional information from any enterprise seeking approval as a joint venture. Failure to provide the requested information shall result in the denial of the requested approval.

(6) Complaints. Complaints regarding the composition or validity of an approved joint venture shall be written and shall be made to the approving agency or educational institution and to the office. The agency or educational institution shall fully investigate each complaint and issue a written report of its findings. The report will be provided to the complainant and to the office. Concurrently, the office may investigate complaints pursuant to its rules and chapter 39.19 RCW.

History

• Statutory Authority: RCW 39.19.030(7). WSR 92-20-079 and 92-20-124, § 326-40-100, filed 10/6/92 and 10/7/92, effective 11/6/92 and 11/7/92. Statutory Authority: Chapter 39.19 RCW. WSR 84-09-002 (Order 84-5), § 326-40-100, filed 4/5/84.

Chapter 326-50 Participation programs.

Wash. Admin. Code § 326-50-010 Participation programs, purpose and intent.

It is the policy of the state of Washington to provide the maximum practicable opportunity for increased participation by minority and women-owned businesses in public works and the process by which goods and services are procured by state agencies and educational institutions from the private sector.

OMWBE is directed by RCW 39.19.030(1) to: "Develop, plan, and implement programs" to provide such opportunities for participation by qualified minority and women-owned businesses. OMWBE has found that there is a need to supplement the certification program in order to encourage MWBE participation in state contracts. Therefore, OMWBE will develop participation programs to advance the state of Washington's policy to mitigate the effects of societal discrimination, and to increase opportunities for minority and women-owned firms to do business with the state. The implementation of these programs will result in increased opportunities for MWBEs to develop and grow in the existing market place, and to assist them in establishing new business relationships with the state of Washington.

History

• Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-010, filed 11/25/85, effective 3/1/86.

Wash. Admin. Code § 326-50-020 Definitions.

For purposes of chapter 326-50 WAC;

(1) "Non-MWBE firm" means a firm or business which is not certifiable as a MWBE under chapter 39.19 RCW and its implementing regulations, or a firm which has chosen not to seek certification as a MWBE;

(2) Solely for purposes of participation programs as used in chapter 326-50 WAC, "MWBE" shall mean:

(a) Either an enterprise certified by OMWBE on or before November 22, 1985; or an enterprise which is certified at any time, provided such enterprise has been engaged in bona fide business activities as a minority or woman-owned business for at least one year prior to the filing of an agreement of intent with OMWBE, and

(b) Either an enterprise which is incorporated in the state of Washington as a Washington domestic corporation; or an enterprise whose principal place of business is located within the state of Washington for enterprises which are not incorporated.

(c) Nothing contained in subsections (a) and (b) shall be construed to include or allow foreign corporations to participate in any participation program.

(3) "Participation program" means programs created to supplement the certification program to encourage MWBE participation in state contracts in the areas of goods and services, construction, and personal services.

History

• Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-020, filed 11/25/85, effective 3/1/86.

Wash. Admin. Code § 326-50-030 Business partnership program—Purchased goods and services, architecture, engineering and other consultants—Purpose and intent.

(1) Purpose and intent. The primary purpose of this Participation Program I, hereinafter referred to as the business partnership program, is to increase opportunities for certified MWBEs to provide purchased goods and services, and architecture, engineering and other consultant services to state agencies and educational institutions. This program is designed to increase the number of MWBEs participating in state contracts, and to enhance the economic viability of certified businesses, by providing incentives to non-MWBE firms, both large and small, to develop ongoing business relationships with OMWBE certified firms.

(a) The business partnership program will be in effect as of March 1, 1986. This program is a prototype program, and will be periodically evaluated by OMWBE. After the program has been in effect for twelve months, OMWBE will evaluate the program to determine whether it is fulfilling the purposes for which it is designed.

(2) The program is designed to address several specific needs of minority and women firms by (a) increasing opportunities for providing purchased goods and services, and architecture, engineering and other consultant services, and (b) providing short-term and limited financial assistance, technical assistance, and networking.

History

• Statutory Authority: RCW 39.19.030(7). WSR 89-24-050, § 326-50-030, filed 12/1/89, effective 1/1/90. Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-030, filed 11/25/85, effective 3/1/86.

Wash. Admin. Code § 326-50-040 Implementation of business partnership program.

(1) Agreement of intent—Contents of agreement. In order to claim business partnership credit for contracts or other assistance provided to MWBEs, an agreement of intent must be filed with OMWBE by the non-MWBE firm within seven days of the commencement of the supplier-service contract. The agreement of intent to be filed with OMWBE must include such information as required by OMWBE.

(2) Evaluation committee.

(a) An evaluation committee will review each agreement of intent and make a recommendation to the director. Evaluation committees appointed by OMWBE will consist of a representative from the private sector, a representative from the MWBE community, and a state agency representative. During the prototype phase of the program, the purchased goods and services workgroup, appointed by the OMWBE advisory committee, will serve as the evaluation committee.

(b) The office, through the evaluation committee, will monitor the progress of the agreement of intent against the details outlined in the agreement of intent as filed with OMWBE, or as approved under subsection (3) below.

(3) The director may approve the agreement, with or without modifications, or disapprove the agreement. Upon approval of the agreement, OMWBE will establish an account for non-MWBE firms under the number assigned to the agreement of intent. Upon proof of completion of the agreement, or portions thereof if applicable, credits for the negotiated dollar value of the contract will be placed in the non-MWBE firm's account.

(4) The credit received by the non-MWBE firms will be calculated from the firm's documented expenditures. Prior to initiating a goods or service contract or other approved assistance, the non-MWBE firm must file an agreement of intent with OMWBE. Upon approval of the plan, the firm will thereafter document the actions that have been taken on behalf of MWBEs. The actual dollar value to be credited may be established either before or after the program is concluded, but the agreement of intent must set the standards for evaluation and receive approval by OMWBE. The amount of credit that will be given for any contracted good or service or other approved assistance will be established between OMWBE and the non-MWBE firm.

History

• Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-040, filed 11/25/85, effective 3/1/86.

Wash. Admin. Code § 326-50-050 Utilization of credits in business partnership account.

(1) The credits in a non-MWBE firm's business partnership account may be applied to goods and services, architecture, engineering and other consultant services contracts or requests for proposals. The credits cannot apply to MWBE requirements set on construction or public works contracts.

(2) Only the value of those transactions requested and approved may be applied against MWBE requirements set by state agencies or educational institutions in meeting contract specifications.

(3) When the non-MWBE firm bids on a state contract, it may utilize the credit it has established with OMWBE by applying the credit against the MWBE participation requirements set on contracts or requests for proposals for purchase of goods and services, architecture, engineering and other consultant services.

(4) The state agency or educational institution shall give the non-MWBE firm equal consideration as other vendors utilizing certified MWBE vendors in evaluating the bids or requests for proposal. The state agency or educational institution may count the credit toward its annual overall goals.

(5) The credit obtained by an agreement of intent shall only be used once. Additional credits may be obtained by filing additional agreements of intent with OMWBE.

(6) If credits on file with OMWBE are invoked by the non-MWBE firm on more than one outstanding bid or proposal, the credits shall be utilized on the first contract awarded.

(7) The state agency letting a contract shall contact the OMWBE to verify the existence of credits on file at the time an apparent low bidder using business partnership credits to meet the MWBE requirements of the contract is identified. The state agency letting the contract shall notify the OMWBE of the award of the contract, and the number of credits utilized by the non-MWBE firm to meet the MWBE requirements of the contract.

(8) If credits are used on one contract (first awarded), the non-MWBE firm, if the apparent low bidder, may be allowed a period of up to twenty-four working hours to secure new or additional MBE or WBE subcontractors. If written proof of subcontractors with new or additional MBE or WBE firms is not provided to the agency within that time, agency may award contract pursuant to WAC 326-40-020.

(9) The business partnership credits will remain in the account established for the non-MWBE firm for one year after the credits are accrued, or for one year from the time the contract in the agreement of intent is completed, as stipulated in the agreement of intent. All unused credit will be voided six months after the effective date, in the event the business partnership program is discontinued.

History

• Statutory Authority: RCW 39.19.030(7). WSR 89-24-050, § 326-50-050, filed 12/1/89, effective 1/1/90. Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-050, filed 11/25/85, effective 3/1/86.

Wash. Admin. Code § 326-50-060 Default by either party to the agreement of intent.

The parties to the agreement of intent (the non-MWBE firm and MWBE firm) reserve their rights to pursue legal remedies based upon the underlying contract between them. In the event of default by either party, appropriate action can be taken by either to assure compliance or to recover damages. Approval of the agreement of intent by OMWBE does not constitute a ruling that the contract is in compliance with state laws, nor that either party is capable of performing its portion of the agreement. Approval of the agreement by OMWBE merely signifies that OMWBE believes the fulfillment of this agreement will further the goals of the program established by the state under chapter 39.19 RCW. If the MWBE is unable or unwilling to perform the agreement of intent, the non-MWBE firm may utilize its right to substitute under WAC 326-30-080. OMWBE also reserves the authority to apply the full range of sanctions available under the law against the parties to the agreement of intent, as appropriate, if perjured agreements of intent are filed, or spurious claims for credits are made.

History

• Statutory Authority: Chapter 39.19 RCW. WSR 85-24-010 (Order 85-10), § 326-50-060, filed 11/25/85, effective 3/1/86.

Chapter 326-70 Linked deposit program.

Wash. Admin. Code § 326-70-010 Linked deposit program—Purpose and intent.

The purpose of this program is to facilitate access to capital for minority and women's business enterprises certified under chapter 39.19 RCW. The intent of these rules is to increase the number of minority and women business owners participating in the program and decrease the wait period between enrollment approval and funding.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-010, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-020 Definitions.

The following words and terms have specific meaning as used in this chapter which may be different from their meaning elsewhere in this title.

(1) "Business" means an entity that is certified as a MBE, WBE, MWBE or CBE under chapter 39.19 RCW.

(2) "Office" means the Washington state office of minority and women's business enterprises (OMWBE).

(3) "Owner" means any person(s) holding a majority ownership interest in a business certified under chapter 39.19 RCW.

(4) "Person" means one or more individuals, partnerships, associations, organizations, corporations, cooperatives, limited liability companies, legal representatives, trustees and receivers, or any group of persons.

(5) "Principal amount" means the amount of the loan as of the time the loan is initiated (not its declining balance from time to time).

(6) "Program" means the linked deposit program authorized under RCW 43.86A.060.

(7) "Treasurer" means the office of the state treasurer.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-020, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-035 Loan and enrollment limits.

(1) The total principal amount of a single qualified loan shall not exceed one million dollars.

(2) The total principal amount of qualified loans under the program that any one business may receive over the lifetime of the business shall not exceed five million dollars.

(3) The total principal amount of qualified loans that an owner of one or more businesses may enroll in the program during her/his lifetime shall be five million dollars.

(4) The number of qualified loans that any one business may enroll in the program over the lifetime of the business shall not be limited: Provided, That a statement regarding the number of full-time or part-time jobs to be created or saved by each new enrollment is filed with the office at the time of enrollment.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-035, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-040 Funding eligibility.

All qualified public depositaries desiring to enroll a qualified loan in the linked deposit program shall complete and submit a loan enrollment form to the office for approval. The loan must be to a business certified under chapter 39.19 RCW and the form must be signed by the owner having the majority ownership interest in the business. The office shall review all forms received by the twenty-fifth day of each calendar month and forward a list of approved enrollments to the treasurer by the fifth working day of the following month.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-040, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-050 Funding priority—Established.

Funding shall occur on a monthly basis as funds are available. First-time enrollments must be first to receive funding in the month they are approved. If available funds are insufficient to cover the remaining enrollments in a given month, the unfunded enrollments must be first to receive funding in the subsequent month. First-time enrollments in that month will be funded following the funding of enrollments brought forward from the previous month(s). See illustration below.

Note: In the Loan ID column, the alpha character identifies the month in which the enrollment was approved. After three months on the list, unfunded enrollments (other than first-timers) will be funded in alternating order with first-time enrollments. First-timers that are unfunded after six months will be given priority and not subjected to alternating. (See WAC 326-70-060)

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-050, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-060 Funding priority—Adjusted.

(a) Approved but unfunded enrollments on the effective date of these rules shall be funded prior to enrollments approved after the effective date of these rules.

(b) The funding list will be reviewed and updated each month in a manner that maintains the priority of first-time enrollments for the current month while providing funding for others that have been unfunded for at least three months.

(c) When a first-time enrollment remains unfunded after six months due to lack of available funds, it must be funded with available funds before all other enrollments.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-060, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-065 Accountability.

Qualified public depositaries shall report current loan balances each month on all loans to the treasurer.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-065, filed 1/22/08, effective 2/22/08.

Wash. Admin. Code § 326-70-070 Applicability of rules.

This chapter shall apply to all enrollment requests to the linked deposit program: Provided, That sections WAC 326-70-050 and 326-70-060 shall apply only to enrollments approved after the effective date of the rules adoption. Enrollments received prior to the effective date of the rule shall be funded in the order received, subject to availability of funds.

History

• Statutory Authority: RCW 39.19.030, 43.86A.060, and 2007 c 500 §§ 1 and 2. WSR 08-03-116, § 326-70-070, filed 1/22/08, effective 2/22/08.