Rule-Making Notices
Notice of Hearings
Administration
NOTICE IS HEREBY GIVEN that pursuant to ss.
16.004 (1),
227.11 (2) (a), and
16.855 (15), Stats., and interpreting ss.
16.85 and
16.855, Stats., the Department of Administration will hold public hearings on a proposed rule order revising ch.
Adm 21 relating to construction contracting for facilities owned by the State of Wisconsin.
Hearing Information
Date: May 14, 2008
Time: 3:00 PM to 5:00 PM
Location: Dept. of Administration Building
101 East Wilson Street
First Floor, St. Croix Conference Room
Madison, Dane County
Date: May 15, 2008
Time: 10:00 AM to 12:00 Noon
Location: Eau Claire State Office Building
718 West Clairemont Avenue
First Floor Conference Room 105
Eau Claire, Eau Claire County
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are also urged to submit facts, opinions and arguments in writing as well.
Submission of Written Comments
Written comments from persons unable to attend the public hearing, or who wish to supplement testimony offered at the hearing, should be directed to:
Donna Sorenson
Department of Administration
101 E. Wilson Street
P.O. Box 7864
Madison, WI 53707-7864
Phone: (608) 266-2887
Written comments must be received by June 15, 2008, to be included in the record of rule-making proceedings.
Analysis Prepared by the Department of Administration
Statutory authority
Statutes interpreted
Explanation of agency authority
Pursuant to s.
16.85, Stats., the Wisconsin Department of Administration is responsible for the supervision of all engineering, architectural services or construction work performed by, or for, the state in the construction and acquisition of new buildings or improvements and additions to existing buildings.
Related statute or rule
None
Summary of proposed rule
The Department proposes amending Chapter
Adm 21, regarding the Department's requirements for advertising, bidding and contracting construction projects.
The proposed rule amendments would permit bidders and contractors to submit state construction project bids via electronic format. This allows for standardized, fair and equitable bidding statewide while maintaining bid integrity. Projects outside of the Dane County area now requires bidders to prepare bids in advance of bid opening and travel to Madison, or use a mail service to deliver the bid to the department. This practice is not considered equitable to contractors throughout the State to have equal preparation time for submitting bids for state construction projects.
Included in the proposed rule are amendments to provide consistency to Department of Administration references as well as language striking written word bids versus numerical values.
Comparison of rules in adjacent states
The State of Wisconsin surveyed other states through the National Association of State Facility Administrators and received several responses. The States of Montana, Ohio, Kansas and Alaska do not currently utilize electronic bidding practices. The State of Vermont has instituted electronic bidding with success and little adverse affect. Several states responded that electronic bidding was being utilized in their Departments of Transportation for roadway projects.
The State of Wisconsin also used data from the Federal Highway Administration regarding other states and bidding practices. 27 states are using electronic bidding for state DOT projects according to a 2006 survey.
The Illinois Capital Development Board opens sealed bids at four locations, Springfield, Chicago, Carbondale and Peru for state building construction projects.
The State of Minnesota Materials Management Division requires on line registration of vendors, but still does sealed public bid opening in paper format. Minnesota does have an initiative to move to electronic plan distribution to vendors.
The State of Iowa individual departments handle construction independently. With exception of the Iowa Transportation Department, the other departments do individual sealed bid delivery and public bid opening via paper bid submittals.
Comparison with federal regulations
The US Department of Transportation Federal Highway Administration utilizes electronic bidding for highway construction projects. A review of the federal websites appear to indicate that other federal agencies can centrally post requested construction/services to the Federal Business Opportunities website with instructions on bidding independent to each agency within the federal government. A review of most of these federal posted projects indicates bids are to be hardcopy hand/overnight or other service delivered to a specified location. None appeared to have electronic bidding availability.
The US Army Corps of Engineers utilizes the US Central Contractor Registration site for Contractors interested in doing Business with the Federal Government. The solicitations appear to require submittal of sealed hard copy bids to be submitted at various locations throughout the country.
Summary of factual data and analytical methodologies
The current rule has been in existence since 1979 with little or no updating. Some editorial and dollar threshold changes were made in a 2006 rule package.
The proposed rule permits bidders and contractors to submit state construction project bids via electronic format. This allows for standardized, fair and equitable bidding statewide while maintaining bid integrity. Projects outside of the Dane County area currently require bidders to prepare bids in advance of bid opening and drive to Madison or use a mail service to deliver the bid to the department. This practice is not considered equitable to contractors throughout the state. Business practices since 1979 have radically changed including current practices such as electronic and web based advertisement, electronic document exchange and acceptance and electronic notifications. The proposed rule amendments will expedite the processing of construction documents and enhance the construction of state projects.
Initial Regulatory Flexibility Analysis
The Department foresees a positive and significant impact on small businesses.
It is estimated the majority of bidders on state construction projects are small business contractors and vendors. This change will save contractors and bidders driving and delivery time and associated costs as well as allowing them additional time in the bidding process to prepare bids for submittal to the department.
Fiscal Estimate
State fiscal effect
This rule will have no effect on the revenues received by the department.
The final decision on how the Department will accept electronic bids has not been made. At this time, it is anticipated that bids would be accepted as a secure upload to WisBuild, which is a secure website used for managing data related to State of Wisconsin building projects from design to completed construction. This would require a robust environment as multiple bidders may attempt to upload their bid near the time of the bid opening.
If the Division of Enterprise Technology can not host such an environment, then the Division of State Facilities would need to contract with a hosting service.
There will be one-time programming costs which are estimated to be $5,200. Also, there will be on-going costs of hosting a database and a file server. Since the size of the database is unknown at this time, it is not possible to identify those on-going costs.
Local fiscal effect
There is no fiscal effect on local units of government.
Private entities fiscal effect
It is unknown at this time as to whether or not there would be any on-going costs to the contractors or bidders as the final decisions on method of transmittal of the bids have not been made.
Text of Proposed Rule
SECTION 1. Adm 21.02 (7), (8) and (9) are renumbered to Adm 21.02 (8), (9) and (10).
SECTION 2. Adm 21.02 (7) is created to read:
(7) “Department" means the Wisconsin department of administration.
SECTION 3. Adm 21.03 (2) is amended to read:
(2) The department
of administration shall advertise for proposals by publication of a class 1 notice under ch.
985, Stats., in the official state newspaper
. or by official department website. The notice shall be published a minimum of 30 days prior to bid opening, unless the department
of administration indicates in writing that the bidding period will be for a lesser period of time.
SECTION 4. Adm 21.04 (1) is amended to read:
(1) The department of administration may issue addenda during the bidding period to correct, alter, or to provide clarification for the project being bid or to extend the bidding period. No oral correction, alteration or clarification of said documents shall be considered valid.
SECTION 5. Adm 21.05 is repealed and recreated to read:
Adm 21.05 Submittal and receipt of bids. (1) All bids shall be submitted electronically or in sealed envelopes.
(a) Electronic bids received by the department shall be submitted via a secured, authorized electronic transfer that provides for time and date verification as well as proper security in the transfer of data and information. Bids shall conform to project specification bid forms and include all information required by the specification as well as this section. The bidder shall submit all supporting and original documentation requested by the department within 3 calendar days of the request.
(b) Sealed envelope bids shall be enclosed in distinctly marked special envelopes provided by the department. Should the bidder not possess the special envelope provided by the department, the bidder shall place the following information on the face of the outermost envelope containing the bidder's proposal:
1. This envelope contains a sealed bid.
2. Project name.
3. Project number.
4. Location of project.
5. Division(s) of work being bid.
6. Bid date.
7. Name and address of bidder.
(2) The bidder is responsible for the bid described in (a) or (b) being delivered to the place designated in the published advertisement for proposals, on or before the date and time specified.
(3) All bids received by the department shall be stamped electronically or upon the face of the envelope indicating the date and time the bid was received.
(4) Bids received by the department after the date and time designated in the advertisement for proposal shall be returned to the bidder unopened.
(5) The department shall determine bids that conform with this section in the best interests of the state.
SECTION 6. Adm 21.06 (1) (b) is amended to read:
(b) Personal appearance of the bidder or the bidder's authorized representative, whereby the identity and authority of the person may be ascertained by the department of administration. After authority and identity is established, the individual shall be required to sign a receipt for the withdrawn bid.
SECTION 7. Adm 21.07 (1) is amended to read:
(1) A representative of the department of administration shall preside at the bid opening as the bidding officer. At the date and time for bid opening, the bidding officer shall announce the following to those in attendance:
SECTION 8. Adm 21.07 (1) (b) 2. is repealed.
SECTION 9. Adm 21.07 (3) (c) and (d) are amended to read:
(c) The written word price quotation for the base bid and alternate bid(s).
(d) If offered, the written word price quotation of a combined bid and identification of the base bids which constitute the work proposed under the combined bid submitted.
SECTION 10. Adm 21.08 (1) is amended to read:
(1) The department of administration shall reject any bid which evidences any of the following conditions:
SECTION 11. Adm 21.08 (2) is amended to read:
(2) The department of administration may reject any bid if the included documents have any of the following informalities, unless such informalities are waived by the department of administration and corrected by the bidder within 3 working days from the date and time of bidder notification:
SECTION 12. Adm 21.08 (3) is amended to read:
(3) The department of administration may reject all low bids constituting the total lowest construction cost when such amount exceeds the authorized funds available.
SECTION 13. Adm 21.08 (4) is amended to read:
(4) The department of administration reserves the right to reject any of all bids, if in the opinion of the department of administration the best interest of the state will be served.
SECTION 14. Adm 21.08 (7) is amended to read:
(7) The department of administration, with the approval of the attorney general, may settle or dispose of cases or issues arising out of errors, omissions, or mistakes contained in a bid which result in the bidder giving written notice of the bidder's intent not to execute the contract. However, if no such settlement is obtained, the bidder proves in circuit court for Dane county that in making the mistake, error or omission the bidder was free from negligence.
SECTION 15. Adm 21.09 (1) is amended to read:
(1) The department of administration will award contracts to the lowest qualified responsible bidder or bidders that result in the lowest total construction cost for the project and such amount does not exceed the available funds authorized for the project. Final determination as to which bidders are the lowest qualified responsible bidders is vested with the department of administration.
SECTION 16. Adm 21.09 (2) is amended to read:
(2) In cases where the bidding documents provide a formula for evaluation analysis in conjunction with the base bid or alternate bid(s), the department
of administration will award to the lowest qualified responsible bidder(s) whose bid(s) produce the lowest bid when combined with the dollar value derived from the formula for converting evaluation factors. (see s.
Adm 21.02(7)(a).)
SECTION 17. Adm 21.09 (4) is amended to read:
(4) Should the total of the proposals submitted by the lowest qualified responsible bidder(s) exceed the limits imposed by authorized funds, the department of administration may negotiate deductive changes in the lowest qualified bid for each contract to bring the bids within funding limits.
SECTION 18. Adm 21.09 (5) is amended to read:
(5) The department
of administration may consider any unsolicited material accompanying the bid of the lowest qualified responsible bidder only after contracts have been awarded on the basis of the information contained in the bid form. Such consideration may be given to unsolicited material only if it is in the best interest of the state to do so, and does not warrant rejection due to any of the conditions stated in s.
Adm 21.08 (1) (e).
SECTION 19. Adm 21.09 (6) is amended to read:
(6) Award of a contract will not be finalized until the required performance payment bond and certificate of insurance have been received and approved by the department of administration.
This rule shall take effect on the first day of the month following publication in the Wisconsin Administrative Register, as provided in s.
227.22 (2) (intro.), Stats.
Notice of Proposed Rules
Government Accountability Board
(Formerly Elections Board)
NOTICE IS HEREBY GIVEN that pursuant to ss.
5.05 (1) (f),
5.93, and
227.11 (2) (a), Stats., and interpreting ss.
7.15 (1m), Stats., and according to the procedure set forth in s.
227.16 (2) (e), Stats., the State of Wisconsin Government Accountability Board will adopt the following rule as proposed in this notice without public hearing unless within 30 days after publication of this notice, May 15, 2008, the Board is petitioned for a public hearing by 25 persons who will be affected by the rule; by a municipality which will be affected by the rule; or by an association which is representative of a farm, labor, business, or professional group which will be affected by the rule. The rule creates ch.
GAB 12, relating to the certification and training of municipal clerks.
Submission of Written Comments
Comments can be submitted to the Government Accountability Board, 17 West Main Street, P.O. Box 2973, Madison, WI 53701-2973; (elections.state.wi.us)
Contact Person
George A. Dunst
Staff Counsel, Government Accountability Board
17 West Main Street, P.O. Box 2973
Madison, Wisconsin 53701-2973
Phone: (608) 266-0136
Analysis Prepared by the Government Accountability Board
Statutory authority
Statute interpreted
Explanation of agency authority
Under s.
7.15 (1m), Stats., “Each municipal clerk shall, at least once every 2 years, attend a training program sponsored by the board under ss.
7.31 and
7.315" and under s.
7.315 (3), “The board shall, by rule, prescribe requirements for, and the content of, training required of municipal clerks under s.
7.15 (1m). The board may provide such training directly or arrange for such training to be provided by other organizations. The rules shall provide a method for notifying the relevant municipal governing body if a municipal clerk fails to attend required training." To comply with these statutory requirements, the Board has adopted Chapter
GAB 12, relating to the certification and training of municipal clerks.
Related statute(s) or rule(s)
Section
7.31, Stats. - Training and certification of chief inspectors.
Plain language analysis
The proposed rule provides the requirements that, and the method by which, municipal clerks receive elections training and certification.
Comparison with federal regulations
Federal law does not regulate the training of municipal clerks. Although federal law does not have a comparable provision for the training of municipal clerks, federal law - the Help America Vote Act of 2002 or “HAVA," (Public Law 107-252, Oct. 29, 2002) – has mandated the training of election officials and poll workers in each of the 50 states. Under HAVA, each state receiving federal funds to improve the administration of elections in the state has to develop a plan that includes “programs for election official education and training, and poll worker training which will assist the state in meeting the requirements of Title III" (of the Act). The State of Wisconsin has developed and is implementing such a plan for poll workers and now is implementing a plan for the training of municipal clerks because municipal clerks also act as election officials.
Comparison with rules in adjacent states
Illinois, Iowa, Michigan and Minnesota all statutorily require that persons who conduct elections shall receive election training.
Minnesota's administrative rule, Chapter 8240, requires all persons conducting elections, including local election officials, to complete a training program and to maintain a current elections training certification.
Neither Illinois nor Michigan has an administrative rule governing the election training of clerks or election officials other than election judges (inspectors/pollworkers).
Iowa's Administrative Code provides that “all precinct election officials and any other persons who will be employed in or around the polling places on election day and “At least two precinct election officials who will serve on each precinct election board at the forthcoming election shall attend an election training course not later than the day before each primary and general election." The training is conducted by the County Commissioner of Elections and applies to those persons who actually conduct elections and does not apply to municipal clerks who do not have an elections supervisory function.
Summary of factual data and analytical methodologies
Adoption of the rule was predicated on federal and state mandate rather than on any factual data or analytical methodology.
Analysis and supporting documents used to determine effect on small business
The rule will have no effect on small business, nor any economic impact.
Initial Regulatory Flexibility Analysis
The creation of this rule does not affect business.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Text of Proposed Rule
Pursuant to the authority vested in the State of Wisconsin Government Accountability Board by ss.
5.05 (1) (f) and
227.11 (2) (a), Stats., the Government Accountability Board hereby creates Chapter
GAB 12, interpreting ss.
7.15 (1m),
7.31, and
7.315, Stats., as follows:
SECTION 1. Chapter
GAB 12 is created to read:
Certification and Training of Municipal Clerks
GAB 12.01 Municipal clerk training. (1) Definitions. As used in this rule:
(a) “Board" means the government accountability board.
(b) “Election cycle" begins on January 1 of an odd-numbered year and continues through December 31 of an even-numbered year.
(c) “Municipal clerk" includes the executive director and deputy director of the Milwaukee City Board of Election Commissioners.
(d) “Municipal election official" means municipal clerk, deputy clerk or any municipal employee charged with duties related to the administration of elections.
(e) “Statewide Voter Registration System" or “SVRS" is the election administration software application provided by the board to enable local election officials to register voters, track absentee voting and administer elections.
GAB 12.02 Certification. (1) Only municipal clerks who meet the training standards established in this chapter shall be certified by the board.
(2) Any other municipal election official who meets the standards established in this chapter may be certified by the board.
(3) The standards for the initial and the renewal certifications of municipal clerks are those set forth in this chapter.
(4) A record of the municipal clerks who meet the training requirements established by this chapter shall be maintained by the board.
(5) To qualify for certification, a municipal clerk shall provide the board with documentation of attendance at any approved training that has not been conducted by board staff.
(6) The records concerning the training qualifications of municipal clerks are public records and shall be provided by the board upon request.
(7) The governing body of any municipality whose municipal clerk fails to meet the training standards set out in this chapter shall be notified of that fact by the board.
GAB 12.03 Qualification. (1) Only individuals who have been elected or appointed to the office of municipal clerk, or who serve as a municipal election official, shall be certified by the board.
(2) Individuals shall attend or view a core curriculum training course conducted under the direction of the board staff to qualify for initial certification.
(3) Training opportunities shall be conducted by the board in several locations throughout the state, and shall be made available on-line and in video or audio format, to enable interested individuals to participate.
(4) Each municipal clerk who attends a training course conducted under the direction of the board's staff shall register with the board.
(5) The expiration date for training certification shall coincide with the end of the election cycle immediately following attendance at the initial training.
GAB 12.04 Training content. (1) The content of the training curriculum is prescribed by the board.
(2) The training curriculum shall include the following elements:
(a) A core curriculum session that provides an overview of the election–related duties of a municipal clerk.
(b) Instructions on the proper completion of election-related forms and notices, including a requirement that the information on election-related forms be legible.
(c) Review of the applicable statutory deadlines for publishing notices, submitting petitions and ballot access documents.
(d) Directions for the review and completion of election-related forms and petitions, including affixing the signature and certification required by law.
(e) Treatment of confidential voter information and proof of residence documents received from a voter.
(f) Review of the deadlines and procedures for delivering completed election-related documents to the board of canvassers.
(g) A description of the calendar of election events and critical election-related timelines.
(h) Duties of the municipal clerk with respect to candidates for municipal office.
(i) Requirements for ballot design and preparation, including write-in ballots for military and overseas electors.
(j) Duties of the municipal clerk with respect to voters including, absentee, military, overseas and confidential electors and accessibility to the electoral process.
(k) Requirements for recruitment, appointment and training of election inspectors, special voting deputies, special registration deputies and other election officials.
(L) Requirements for acquisition, testing, security and audit of voting equipment.
(m) Procedures for ensuring security of ballots and voting equipment including chain-of-custody documentation, use of serialized, tamper-evident seals and monitoring of security procedures.
(n) Requirements for establishing, equipping, supplying, securing, and preparing polling places for elections, including emergency preparedness.
(o) Election-day responsibilities of the municipal clerk.
(p) Post-election responsibilities of the municipal clerk, including conducting the municipal canvass, issuing certificates of election and conducting a recount.
(q) Requirements for recall and direct legislation.
(r) The consequences for failing to follow prescribed procedures.
(s) Any other information prescribed by the board.
GAB 12.05 Certification renewal. (1) After attending the initial training, individuals seeking to maintain their training certification must attend, in the election cycle, an additional three (3) hours of training approved by the director and general counsel of the board.
(2) To renew their certification for the next election cycle, individuals must attend six (6) hours of training approved by the director and general counsel of the board.
(3) Individuals may not carry over training hours to qualify for renewal of their certification in subsequent election cycles.
(4) The approved training may consist of attendance at any combination of the following training opportunities if that training opportunity covers all or part of the training content described in this chapter:
(a) A certification-training course for municipal clerks or chief election inspectors conducted under the direction of the board staff.
(b) Training on the use of the Statewide Voter Registration System presented under the direction of the board staff. This includes on-line training developed for the board and made available to local election officials.
(c) A workshop conducted by the board staff at a state or district meeting of the Wisconsin County Clerks Association, Wisconsin Municipal Clerks Association, Wisconsin Towns Association or League of Wisconsin Municipalities.
(d) An information presentation conducted by the board staff and sponsored by the University of Wisconsin Extension Local Government Center.
(e) Training conducted by a municipal or county clerk for election inspectors pursuant to ss.
7.10 (9),
7.15 (1) (e) and
(11), Wis. Stats.
(f) Attendance at a state, regional or national conference, or a seminar of a professional organization, that serves election officials.
(5) The board shall maintain a record of the approved training event, including the date and location of the approved training.
(6) When the individual has completed the renewal requirements, the individual's certification shall be extended for the duration of the next election cycle.
GAB 12.06 Certification waiver. (1)
In the event of an emergency, the municipal clerk may make a written request to the board for a waiver of the training requirement for a municipal clerk.
(2)
The request shall be communicated to the director and general counsel of the board in an expeditious manner.
(3)
The request shall describe the facts that establish the basis for the emergency request and the steps that have been taken by the municipal clerk to obtain the required training.
(4)
The director and general counsel of the board may grant a waiver of the required training for one election cycle.
The creation of this rule will take effect on the first day of the month following its publication in the Wisconsin Administrative Register pursuant to s.
227.22 (2), Stats.
