The opinion of the court was delivered by: Bernard L. McGINLEY, Judge
ORDER AND NOW, this 19th day of October, 2011, it is ORDERED that the above-captioned opinion filed July 22, 2011 shall be designated OPINION rather that MEMORANDUM OPINION, and it shall be reported.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilco Mechanical Services, Inc., Petitioner v. Department of General Services, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION BY JUDGE McGINLEY
Wilco Mechanical Services, Inc. (Wilco) petitions for review from the final decision of the Department of General Services (DGS) that affirmed the Bureau of Minority and Women Business Opportunities‟ (BMWBO) denial of Wilco‟s request for certification as a Women‟s Business Enterprise (WBE).
On April 30, 2010, Wilco applied for certification as a WBE with the BMWBO and submitted extensive documentation*fn1 in support of its principal, Meaghen Moyer‟s (Moyer) request. On June 21, 2010, BMWBO denied Wilco‟s application: The . . . BMWBO has reviewed your application for certification as a Women Business Enterprise. After pg. careful review, BMWBO has determined that your firm does not meet the requirements for a Women Business Enterprise as required by the eligibility standards. This determination is based on information found in 4 Pennsylvania Code, Chapter 58, titled Statement of Policy related to Ownership, Management and Operational Control of this Business . . . .
Wilco Mechanical Services Inc. does not meet the criteria of a Women Business Enterprise for the following reasons:
The Statements of Policy, §58.204(2)(ii) states that "An eligible MBE or WBE under this subchapter shall be an independent business. . . . In determining whether a potential MBE or WBE is an independent business, BMWBO will consider all relevant factors . . . ." Wilco Mechanical Services Inc. is not an independent company because its business relationship with Anchor Fire Protection, a non W/MBE entity that is owned by Ms. Meaghen Moyer‟s father Mr. Ted Wills, Jr. Wilco . . . is in the exact same business line as Anchor Fire Protection (AFP). Their application lists Wilco as providing services in fire protection, sprinkler fabrication and installation and supplier of related materials . . . . Ms. Moyer, the sole owner/employee at Wilco, is also an employee at AFP where she works 24 hours per week. Besides having the same business line and shared personnel, Wilco is located in the same building as AFP. Ms. Moyer rents office space from her parent. Moreover, AFP has been a key subcontractor for Wilco . . . .
BMWBO Decision, June 21, 2010, at 1-2; Reproduced Record (R.R.) at 23a-24a.
On July 20, 2010, Wilco petitioned for reconsideration and alleged:
The Department‟s initial determination and refusal to certify Wilco as a WBE was incorrect. The Department incorrectly determined that Wilco is not an "independent business". The relevant Pa. Code Section §58.204(2)(i) places emphasis on the "Ownership" of the proposed WBE. As demonstrated in the application, Wilco is 100% owned by an eligible person, Meaghen Moyer. The Department did not find any deficiency with the "ownership and control" requirements stated in the regulations. The Department also ...