Explanation of agency authority
Section
779.14, Stats., sets payment and performance assurance requirements that apply to contracts for the performance of labor or furnishing of materials for a public improvement project or public work. Section
779.14 (1s), Stats., requires the Department to biennially adjust the thresholds for various requirements in proportion to any change in construction costs since the last adjustment if the adjustment to be made would not be less than 5%.
Summary of the proposed rule
Chapter
DWD 293 provides adjusted thresholds for various payment and performance assurance requirements that apply to contracts with state or local governments for the performance of labor or furnishing of materials for a public improvement or public work. In accordance with the requirement of the statute, this rule adjusts the thresholds to reflect a 6.82% increase in construction costs from December 2007 to December 2009. These adjusted thresholds have been adopted in an emergency rule which became effective on January 1, 2010; this rule would adopt the same thresholds on a permanent basis.
Summary of analytical methodology
Section
DWD 293.01, Wis. Adm. Code, provides that the Department will adjust the required bond thresholds on the basis of the change in the construction cost index as published in the
Engineering News-Record, a national construction trade publication. The thresholds are rounded to the nearest thousand.
Comparison to federal regulations
The threshold for application of the federal contractor payment and performance bond requirements is $100,000. This threshold is in the statute and is rarely adjusted.
Comparison of payment and performance bond thresholds in adjacent states
Minnesota:
Minnesota has a public contractors' performance and payment bond requirement that applies to a contract that exceeds $75,000.
Illinois:
Illinois requires a bond if a contract for a public work exceeds $5,000. Neither state appears to have a mechanism for adjustment of the thresholds, other than statutory amendment.
Michigan:
Michigan has a performance bond requirement without a clear statutory threshold.
Iowa:
The Department did not find a performance bond requirement for public works contracts in Iowa.
Small Business Impact
The rule affects construction companies, many of whom are small businesses. No reporting, bookkeeping, or other professional skills are required for compliance with the rule.
There does not appear to be any adverse impact on small businesses, because the adjustment of the thresholds for the application of the payment and performance bond requirements prevents these provisions from affecting more and more public works projects over time due solely to the effects of inflation.
Fiscal Estimate
For the same reason as in the paragraph above, this proposed rule does not appear to create any adverse fiscal impact on state or local government or on those businesses that are subject to the rule.
Agency Contact Person
Howard Bernstein, Office of Legal Counsel
Dept. of Workforce Development
P.O. Box 7946
Madison, WI 53707-7946
Phone: (608) 266-9427
