The secretary may organize one or more nonstock corporations under ch. 181
or limited liability companies under ch. 183
for any purpose related to the sale of the state's right to receive any of the payments under the tobacco settlement agreement and may take any action necessary to facilitate and complete the sale.
If the secretary sells the state's right to receive any of the payments under the tobacco settlement agreement, the secretary shall require, as a condition of the sale, that the purchaser notify the secretary if any bonds or other obligations are issued that are secured by any of the payments and provide the secretary with all information on the distribution of the bond or obligation proceeds.
The secretary shall submit a report to the joint committee on finance that includes all of the information provided to the secretary by the purchaser under par. (a)
Tobacco settlement revenues may not be considered proceeds of any property that is not tobacco settlement revenues.
Except as otherwise provided in this subsection, the creation, perfection, and enforcement of security interests in tobacco settlement revenues are governed by ch. 409
. Notwithstanding ch. 409
, with regard to creating, perfecting, and enforcing a valid security interest in tobacco settlement revenues:
If this state or the Wisconsin Health and Educational Facilities Authority is the debtor in the transaction, the proper place to file the required financing statement to perfect the security interest is the department of financial institutions.
The required financing statement shall include a description of collateral that describes the collateral as general intangibles consisting of the right to receive settlement payments arising from or pursuant to the tobacco settlement agreement and all proceeds of that right. The required financing statement may include any additional description of collateral that is legally sufficient under the laws of this state.
The tobacco settlement revenues are general intangibles for purposes of ch. 409
A security interest perfected under this paragraph is enforceable against the debtor, any assignee or grantee, and all 3rd parties, including creditors under any lien obtained by judicial proceedings, subject only to the rights of any 3rd parties holding security interests in the tobacco settlement revenues previously perfected under this paragraph. Unless the applicable security agreement provides otherwise, a perfected security interest in the tobacco settlement revenues is a continuously perfected security interest in all tobacco settlement revenues existing on the date of the agreement or arising after the date of the agreement. A security interest perfected under this paragraph has priority over any other lien created by operation of law or otherwise, which subsequently attaches to the tobacco settlement revenues.
The priority of a security interest created under this paragraph is not affected by the commingling of proceeds arising from the tobacco settlement revenues with other amounts.
The sale, assignment, and transfer of tobacco settlement revenues are governed by this paragraph. All of the following apply to a sale, assignment, or transfer under this paragraph:
The sale, assignment, or transfer is an absolute transfer of, and not a pledge of or secured transaction relating to, the seller's right, title, and interest in, to, and under the tobacco settlement revenues, if the documents governing the transaction expressly state that the transaction is a sale or other absolute transfer. After such a transaction, the tobacco settlement revenues are not subject to any claims of the seller or the seller's creditors, other than creditors holding a prior security interest in the tobacco settlement revenues perfected under par. (b)
The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1.
and the corresponding characterization of the purchaser's property interest is not affected by any of the following factors:
Commingling of amounts arising with respect to the tobacco settlement revenues with other amounts.
The retention by the seller of a partial or residual interest, including an equity interest, in the tobacco settlement revenues, whether direct or indirect, or whether subordinate or otherwise.
The sale, assignment, or transfer of only a portion of the tobacco settlement revenues or an undivided interest in the tobacco settlement revenues.
Any recourse that the purchaser or its assignees may have against the seller.
Whether the seller is responsible for collecting payments due under the tobacco settlement revenues or for otherwise enforcing any of the tobacco settlement revenues or retains legal title to the tobacco settlement revenues for the purpose of these collection activities.
The treatment of the sale, assignment, or transfer for tax purposes.
The sale, assignment, or transfer is perfected automatically as against 3rd parties, including any 3rd parties with liens created by operation of law or otherwise, upon attachment under ch. 409
Nothing in this subsection precludes consideration of the factors listed in subd. 2. a.
in determining whether the sale, assignment, or transfer is a sale for tax purposes. The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1.
may not be considered in determining whether the sale, assignment, or transfer is a sale for tax purposes.
If the secretary sells the state's right to receive any of the payments under the tobacco settlement agreement, the state pledges to and agrees with any purchaser or subsequent transferee of the state's right to receive any of the payments under the tobacco settlement agreement that the state will not limit or alter its powers to fulfill the terms of the tobacco settlement agreement, nor will the state in any way impair the rights and remedies provided under the tobacco settlement agreement. The state also pledges to and agrees with any purchaser or subsequent transferee of the state's right to receive any of the payments under the tobacco settlement agreement that the state will pay all costs and expenses in connection with any action or proceeding brought by or on behalf of the purchaser or any subsequent transferee related to the state's not fulfilling the terms of the tobacco settlement agreement. The secretary may include this pledge and agreement of the state in any contract that is entered into by the secretary under this section.
If the secretary sells the state's right to receive any of the payments under the tobacco settlement agreement, the state pledges to and agrees with any purchaser or subsequent transferee of the state's right to receive any of the payments under the tobacco settlement agreement that the state will not limit or alter the powers of the secretary under this section until any contract that is entered into under this section is fully performed, unless adequate provision is made by law for the protection of the rights and remedies of the purchaser or any subsequent transferee under the contract. The secretary may include this pledge and agreement of the state in any contract that is entered into by the secretary under this section.
This subsection and subs. (8m)
shall govern all civil claims, suits, proceedings, and actions brought against the state relating to the sale of the state's right to receive any of the payments under the tobacco settlement agreement. If the state fails to comply with this section or the terms of any agreement relating to the sale of the state's right to receive any of the payments under the tobacco settlement agreement, an action to compel compliance may be commenced against the state.
If the recovery of a money judgment against the state is necessary to give the plaintiff in an action under sub. (8)
complete relief, a claim for the money damages may be joined with the claim commenced under sub. (8)
(9) Sections 16.007
, and 775.01
do not apply to claims against the state under sub. (8)
. If there is a final judgment against the state in such an action, the judgment shall be paid as provided in s. 775.04
together with interest at the rate of 10% per year from the date such payment was judged to have been due until the date of payment of the judgment.
"Affiliate" means a person, as defined in s. 77.51 (10)
, that controls, is controlled by, or is under common control with another person, as defined in s. 77.51 (10)
"Agency" means an office, department, agency, institution of higher education, association, society or other body in state government created or authorized to be created by the constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority.
"Computer services" means any services in which a computer is utilized other than for personal computing purposes.
"Contractual services" includes all services, materials to be furnished by a service provider in connection with services, and any limited trades work involving less than $30,000 to be done for or furnished to the state or any agency.
"Control" means to own, directly or indirectly, more than 10% of the interest in or voting securities of a business.
"Cost-benefit analysis" means a comprehensive study to identify and compare the total cost, quality, technical expertise, and timeliness of a service performed by state employees and resources with the total cost, quality, technical expertise, and timeliness of the same service obtained by means of a contract for contractual services.
"Executive branch agency" means an agency in the executive branch but does not include the building commission.
"Judicial branch agency" means an agency created under ch. 757
or an agency created by order of the supreme court.
"Legislative service agency" means an agency created under ch. 13
which is authorized, or the head of which is authorized, to appoint subordinate staff, except the building commission.
"Limited trades work" means the repair or replacement of existing equipment or building components with equipment or components of the same kind, if the work is not dependent upon the design services of an architect or engineer, and does not alter or affect the performance of any building system, structure, exterior walls, roof or exits, or the fire protection or sanitation of the building. "Limited trades work" includes decorative and surface material changes within a building and minor preventive maintenance to ancillary facilities such as drives, sidewalks and fences.
"Municipality" means a county, city, village, town, school district, board of school directors, sewer district, drainage district, technical college district or any other public or quasi-public corporation, officer, board or other body having the authority to award public contracts.
"Officer" includes the person or persons at the head of each agency, by whatever title the person or persons may be elsewhere designated.
"Permanent personal property" means any and all property which in the opinion of the secretary will have a life of more than 2 years.
"Personal computing" means utilizing a computer that is located at the work station where the input or output of data is conducted.
"Recovered material" means a product which is recovered from solid waste in a form identical to the original form for a use that is the same as or similar to the original use.
"Recyclable material" means material in waste for which there exists a commercially demonstrated processing or manufacturing technology which uses the material as a raw material.
"Recycled material" means a product which is manufactured from solid waste or paper mill sludge.
"Recycled or recovered content" means the proportion of an item, by weight or other measure, which is recycled material or recovered material.
"Voting securities" means securities that confer upon the holder the right to vote for the election of members of the board of directors or similar governing body of a business, or are convertible into, or entitle the holder to receive upon their exercise, securities that confer such a right to vote.
History: 1971 c. 164
; 1975 c. 41
; 1977 c. 29
; 1979 c. 34
; 1983 a. 27
; 1985 a. 29
, 3200 (1)
; 1987 a. 292
; 1989 a. 335
; 1991 a. 39
; 1993 a. 263
; 1995 a. 27
; 1997 a. 27
; 1999 a. 65
; 2001 a. 16
; 2003 a. 33
; 2005 a. 74
; 2007 a. 20
"Contractual services" include technical and professional services. 65 Atty. Gen. 251.
Subscription service. 16.701(1)
The department may provide a subscription service containing current information of interest to prospective vendors concerning state procurement opportunities. If the department provides the service, the department shall assist small businesses, as defined in s. 16.75 (4) (c)
, who are prospective vendors in accessing and using the service by providing facilities or services to the businesses. The department may charge a fee for any such service. The department shall prescribe the amount of any fee by rule.
The department may permit prospective vendors to provide product or service information through the service established under sub. (1)
. The department may prescribe fees or establish fees through a competitive process for the use of the service under this subsection.
History: 1995 a. 27
; 2001 a. 16
See also s. Adm 9.01
, Wis. adm. code.
The department may maintain a bidders list. Any agency to which the department delegates purchasing authority under s. 16.71 (1)
may maintain a bidders list if authorized by the delegation. The bidders list shall include the names and addresses of all persons who request to be notified of bids or competitive sealed proposals, excluding those to be awarded under s. 16.75 (1) (c)
or (2m) (c)
, that are solicited by the department or other agency for the procurement of materials, supplies, equipment or contractual services under this subchapter. Any list maintained by the department may include the names and addresses of any person who requests to be notified of bids or competitive sealed proposals that are solicited by any agency. The department or other agency shall notify each person on its list of all bids or competitive sealed proposals that are solicited by the department or other agency. The department or other agency may remove any person from its list for cause.
History: 1995 a. 351
; 2001 a. 16
Contractual services. 16.705(1)
The department or its agents may contract for services which can be performed more economically or efficiently by such contract. The department shall, by rule, prescribe uniform procedures for determining whether services are appropriate for contracting under this subsection.
(1n) Subsection (1)
does not apply to a contract entered into by the department of corrections for global positioning system tracking services under s. 301.48 (3)
The department shall promulgate rules for the procurement of contractual services by the department and its designated agents, including but not limited to rules prescribing approval and monitoring processes for contractual service contracts, a requirement for agencies to conduct a uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $25,000 in accordance with standards prescribed in the rules, and a requirement for agencies to review periodically, and before any renewal, the continued appropriateness of contracting under each contractual services agreement involving an estimated expenditure of more than $25,000. Each officer requesting approval to engage any person to perform contractual services shall submit to the department written justification for such contracting which shall include a description of the contractual services to be procured, justification of need, justification for not contracting with other agencies, a specific description of the scope of contractual services to be performed, and justification for the procurement process if a process other than competitive bidding is to be used. The department may not approve any contract for contractual services unless it is satisfied that the justification for contracting conforms to the requirements of this section and ss. 16.71
The director of the office of state employment relations, prior to award, under conditions established by rule of the department, shall review contracts for contractual services in order to ensure that agencies:
Properly utilize the services of state employees;
Evaluate the feasibility of using limited term appointments prior to entering into a contract for contractual services; and
Do not enter into any contract for contractual services in conflict with any collective bargaining agreement under subch. V of ch. 111
The department shall promulgate rules to assure that the process used for selection of persons to perform contractual services includes a review of the independence and relationship, if any, of the contractor to employees of the agency, disclosure of any former employment of the contractor or employees of the contractor with the agency and a procedure to minimize the likelihood of selection of a contractor who provides or is likely to provide services to industries, client groups or individuals who are the object of state regulation or the recipients of state funding to a degree that the contractor's independence would be compromised.
If the agency for which contractual services are performed under a contractual services agreement concludes that the performance was unsatisfactory, the agency shall file with the department an evaluation of the contractor's performance within 60 days after the fulfillment of the agreement. The evaluation shall be in such form as the secretary may require.
The department shall review evaluations submitted under sub. (6)
and promulgate rules prescribing procedures to assure that future contracts for contractual services are not awarded to contractors whose past performance is found to be unsatisfactory, to the extent feasible.
The department shall, annually on or before October 15, submit to the governor, the joint committee on finance, the joint legislative audit committee and the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3)
, a report concerning the number, value and nature of contractual service procurements authorized for each agency during the preceding fiscal year. The report shall also include, with respect to contractual service procurements by agencies for the preceding fiscal year:
A summary of the cost-benefit analyses completed by agencies in compliance with rules promulgated by the department under sub. (2)
Recommendations for elimination of unneeded contractual service procurements and for consolidation or resolicitation of existing contractual service procurements.
See also ch. Adm 10
, Wis. adm. code.
It is possible for the state to lease one of its parking facilities to an independent contractor upon a finding that an independent contractor can perform the service of operating and maintaining the parking facility more economically or more efficiently than the civil service system. 62 Atty. Gen. 183.
Purchasing; powers. 16.71(1)(1)
Except as otherwise required under this section and s. 16.78
or as authorized in s. 16.74
, the department shall purchase and may delegate to special designated agents the authority to purchase all necessary materials, supplies, equipment, all other permanent personal property and miscellaneous capital, and contractual services and all other expense of a consumable nature for all agencies. In making any delegation, the department shall require the agent to adhere to all requirements imposed upon the department in making purchases under this subchapter. All materials, services and other things and expense furnished to any agency and interest paid under s. 16.528
shall be charged to the proper appropriation of the agency to which furnished.
The department shall not delegate to any executive branch agency, other than the board of regents of the University of Wisconsin System, the authority to enter into any contract for materials, supplies, equipment, or contractual services relating to information technology or telecommunications prior to review and approval of the contract by the department. No executive branch agency, other than the board of regents of the University of Wisconsin System, may enter into any such contract without review and approval of the contract by the department. Any executive branch agency that enters into a contract relating to information technology under this section shall comply with the requirements of s. 16.973 (13)
. Any delegation to the board of regents of the University of Wisconsin System is subject to the limitations prescribed in s. 36.11 (49)
The department of administration shall delegate authority to make all purchases for prison industries to the department of corrections. This delegation may be withdrawn by the department of administration only with the consent of, and in accordance with the terms specified by, the joint committee on finance, for failure to comply with applicable purchasing rules, procedures or statutory requirements.
If the department makes or delegates to the department of revenue or to any other designated purchasing agent under sub. (1)
the authority to make a major procurement, as defined in s. 565.01 (4)
, for the department of revenue, the department, department of revenue or designated purchasing agent shall comply with the requirements under s. 565.25
The department shall delegate authority to the service award board to enter into contracts under s. 16.25 (4) (b)