Late last year, the Commonwealth Court ruled in Wilco Mechanical Services, Inc. v. Department of General Services that a DGS decision denying a company’s application for certification under DGS regulations as a Women’s Business Enterprise (WBE) was not reviewable. Certification as a WBE would have allowed the company to participate on state contracts as a subcontractor, with the prime contractor receiving credit for using the company.
The Court found that WBE certification process did not operate pursuant to either a regulation or a statute but as part of a general statement of policy. Moreover, the company seeking certification did not have a personal right or a property right in such a certification. Therefore, the rejection of the WBE certification application was not an adjudication and was not appealable.
As a result of this ruling, certification decisions regarding MBEs and WBEs are now vested within the sound discretion of the public officials reviewing such applications, and the courts are unavailable for relief in the event of a rejection of an application for MBE or WBE status.
The Commonwealth Court decision can be found here. The website for the DGS Bureau of Minority and Women Business Opportunities can be found here. Instructions on how to become an MBE or WBE under the DGS program can be found here.
Christopher I. McCabe, Esq.
