SB431: Bill Text

LRB-4101/1

JTK:kmg:jf

1999 - 2000 LEGISLATURE

1999 Senate BILL 431

March 1, 2000 - Introduced by Senators George and Welch, cosponsored by Representatives Berceau, Pocan, Gronemus and Kreuser. Referred to Economic Development, Housing and Government Operations.

SB431,1,3 An Act to amend 16.75 (1) (a) 1., 16.82 (6), 23.41 (5), 84.01 (13) and 84.06 (2) (a), (3) and (4); and to create 16.753 of the statutes; relating to: state procurement from persons doing business in Burma or with the government of Burma.

Analysis by the Legislative Reference Bureau

This bill restricts the procurement of any materials, supplies, equipment or contractual services by this state from any person doing business in Burma or with the government of Burma. Under the bill, the secretary of administration is directed to maintain a restricted purchase list consisting of persons from whom state procurements are restricted. The list is compiled from statements that are required to be filed by proposed vendors and from other reliable sources. With limited exceptions, state procurements from persons whose names appear on the list are prohibited unless the secretary of administration determines that a particular procurement is essential and that elimination of a vendor whose name is on the list would eliminate the only source from which that procurement can be made or would result in competition that would be inadequate to protect the state's financial interests with respect to that procurement.

The bill does not apply to any person with operations in Burma for the sole purpose of reporting the news, or solely for the purpose of providing materials, supplies, equipment or contractual services for the purpose of telecommunications. Medical supplies are also exempted from the procurement restriction.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB431, s. 1 Section 1. 16.75 (1) (a) 1. of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB431,2,11 16.75 (1) (a) 1. All orders awarded or contracts made by the department for all materials, supplies, equipment and contractual services to be provided to any agency, except as otherwise provided in par. (c) and subs. (2), (2g), (2m), (3m), (3t), (6), (7), (8) and (9) and ss. 16.73 (4) (a), 16.751, 16.753, 16.754, 50.05 (7) (f), 287.15 (7) and 301.265, shall be awarded to the lowest responsible bidder, taking into consideration life cycle cost estimates under sub. (1m), when appropriate, the location of the agency, the quantities of the articles to be supplied, their conformity with the specifications, and the purposes for which they are required and the date of delivery.

SB431, s. 2 Section 2. 16.753 of the statutes is created to read:

SB431,2,14 16.753 Procurement from persons doing business in or with Burma. (1) In this section:

SB431,2,15 (a) "Burma" means the nation of Myanmar.

SB431,2,17 (b) "Distribution agreement" means an agreement to guarantee an order or contract for the provision of materials, supplies, equipment or contractual services.

SB431,2,18 (c) "Doing business in Burma" means any of the following:

SB431,3,2 1. Having a principal place of business, place of incorporation or corporate headquarters in Burma, or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements or similar agreements in Burma.

SB431,3,4 2. Being a majority-owned subsidiary, licensee or franchisee of a person that has any of the interests described under subd. 1.

SB431,3,5 3. Promoting the importation or sale of any natural resource from Burma.

SB431,3,9 (d) "Government of Burma" means any public or quasi-public entity operating within Burma, including any national, provincial, municipal, other governmental or military body, public utility, public facility or national corporation in which the government of Burma has a financial interest or operational responsibilities.

SB431,3,11 (e) "Majority-owned subsidiary" means an entity that is more than 50% owned by another entity.

SB431,3,13 (f) "State" means the state of Wisconsin or any agency thereof, a contractor acting pursuant to a contract with the state or any agent of the state.

SB431,3,21 (2) Notwithstanding s. 16.75 (1) (a) 2., (2), (2m) and (6), the state shall not purchase materials, supplies, equipment or contractual services from any person who is on the restricted purchase list maintained by the department under sub. (5) unless the secretary determines that a particular procurement is essential and elimination of a vendor who is on the restricted purchase list would eliminate the only source from which that procurement can be made or would result in competition that would be inadequate to protect the state's financial interests with respect to that procurement.

SB431,3,25 (3) Each agency that solicits bids or competitive sealed proposals for the purchase of materials, supplies, equipment or contractual services shall provide notice of this section in the solicitation. The secretary may prescribe the form of the notice.

SB431,4,6 (4) Before awarding any order or contract for materials, supplies, equipment or contractual services to be supplied to this state, the agency placing the order or entering into the contract shall require the proposed vendor to submit a sworn statement, on a form prescribed by the secretary, providing information sufficient to determine whether making the procurement from the proposed vendor would contravene this section.

SB431,4,17 (5) The secretary shall maintain a restricted purchase list consisting of the names of persons who, during the current or preceding calendar year, are or were doing business in Burma or with the government of Burma. The secretary shall include on the list the name of any person whose statement submitted under sub. (4) indicates that the person meets the criteria for being included on the list. In creating the list, the secretary shall consult United Nations reports, resources of The Investor Responsibility Research Center, The Associates to Develop Democratic Burma and other reliable sources. The secretary shall update the list maintained under this subsection at least once every 3 months. The secretary shall provide the list maintained under this subsection and each revision thereof to each agency making direct procurements.

SB431,4,18 (6) This section does not apply to any of the following:

SB431,4,21 (a) A person with operations in Burma for the sole purpose of reporting the news, or solely for the purpose of providing materials, supplies, equipment or contractual services for the provision of international telecommunications.

SB431,4,25 (b) The purchase of medical supplies intended to preserve or prolong life or to cure, prevent or ameliorate disease, including hospital, nutritional, diagnostic, pharmaceutical and nonprescription products specifically manufactured to satisfy identified health care needs, or for which there is no medical substitute.

SB431,5,6 (7) The determination of whether a medical substitute exists under sub. (6) (b) shall be made by the agency making a procurement pursuant to general standards of good medical and professional practice. An agency making a determination under this subsection shall record a statement of the reasons therefor in writing. If the agency is not the department, the agency shall file a copy of the statement with the department prior to making the procurement.

SB431, s. 3 Section 3. 16.82 (6) of the statutes is amended to read:

SB431,5,14 16.82 (6) May provide any services to a local professional baseball park district created under subch. III of ch. 229, for compensation to be agreed upon between the department and the district, if the district has entered into a lease agreement with the department under sub. (7), except that the department shall not act as a general contractor for any construction work undertaken by the district. No order or contract to provide any such services is subject to s. 16.705, 16.75 (1) to (5) and (8) to (10), 16.752, 16.753, 16.754 or 16.765.

SB431, s. 4 Section 4. 23.41 (5) of the statutes is amended to read:

SB431,6,4 23.41 (5) Each contract for construction work entered into by the department under this section shall be awarded on the basis of bids or competitive sealed proposals in accordance with procedures established by the department. Each contract for construction work shall be awarded to the lowest responsible bidder or the person submitting the most advantageous competitive sealed proposal as determined by the department. If the bid of the lowest responsible bidder or the proposal of the person submitting the most advantageous competitive sealed proposal is determined by the department to be in excess of the estimated reasonable value of the work or not in the public interest, the department may reject all bids or competitive sealed proposals. Every such contract is exempted from ss. 16.70 to 16.75, 16.755, 16.76, 16.767 to 16.82, 16.855, 16.87 and 16.89, but ss. 16.528, 16.753, 16.754 and 16.765 apply to the contract. Every such contract involving an expenditure of $30,000 or more is not valid until the contract is approved by the governor.

SB431, s. 5 Section 5. 84.01 (13) of the statutes is amended to read:

SB431,6,11 84.01 (13) Engineering services. The department may engage such engineering, consulting, surveying or other specialized services as it deems advisable. Any engagement of services under this subsection is exempt from ss. 16.70 to 16.75, 16.755 to 16.82 and 16.85 to 16.89, but ss. 16.528, 16.752, 16.753 and 16.754 apply to such engagement. Any engagement involving an expenditure of $3,000 or more shall be by formal contract approved by the governor.

SB431, s. 6 Section 6. 84.06 (2) (a), (3) and (4) of the statutes are amended to read:

SB431,7,7 84.06 (2) (a) All such highway improvements shall be executed by contract based on bids unless the department finds that another method as provided in sub. (3) or (4) would be more feasible and advantageous. Bids shall be advertised for in the manner determined by the department. Except as provided in s. 84.075, the contract shall be awarded to the lowest competent and responsible bidder as determined by the department. If the bid of the lowest competent bidder is determined by the department to be in excess of the estimated reasonable value of the work or not in the public interest, all bids may be rejected. The department shall, so far as reasonable, follow uniform methods of advertising for bids and may prescribe and require uniform forms of bids and contracts. Except as provided in par. (b), the secretary shall enter into the contract on behalf of the state. Every such contract is exempted from ss. 16.70 to 16.75, 16.755 to 16.82, 16.87 and 16.89, but ss. 16.528, 16.752, 16.753 and 16.754 apply to the contract. Any such contract involving an expenditure of $1,000 or more shall not be valid until approved by the governor. The secretary may require the attorney general to examine any contract and any bond submitted in connection with the contract and report on its sufficiency of form and execution. The bond required by s. 779.14 (1m) is exempt from approval by the governor and shall be subject to approval by the secretary. This subsection also applies to contracts with private contractors based on bids for maintenance under s. 84.07.

SB431,7,24 (3) Contracts with county or municipality; direct labor; materials. If the department finds that it would be more feasible and advantageous to have the improvement performed by the county in which the proposed improvement is located and without bids, the department may, by arrangement with the county highway committee of the county, enter into a contract satisfactory to the department to have the work done by the county forces and equipment. In such contract the department may authorize the county to purchase, deliver and store materials and may fix the rental rates of small tools and equipment. The contract shall be between the county and the state and shall not be based on bids, and may be entered into on behalf of the county by the county highway committee and on behalf of the state by the secretary. Such contract is exempted from s. 779.14 and from all provisions of chs. 16 and 230, except s. ss. 16.753 and 16.754. If the total estimated indebtedness to be incurred exceeds $5,000 the contract shall not be valid until approved by the governor. The provisions of this subsection relating to agreements between a county and the state shall also authorize and apply to such arrangements between a city, town or a village and the state. In such cases, the governing body of the city, town or village shall enter into the agreement on behalf of the municipality.

SB431,8,19 (4) Special contracts with railroads and utilities. If an improvement undertaken by the department will cross or affect the property or facilities of a railroad or public utility company, the department may, upon finding that it is feasible and advantageous to the state, arrange to perform portions of the improvement work affecting such facilities or property or perform work of altering, rearranging or relocating such facilities by contract with the railroad or public utility. Such contract shall be between the railroad company or public utility and the state and need not be based on bids. The contract may be entered into on behalf of the state by the secretary. Every such contract is exempted from s. 779.14 and from all provisions of chs. 16 and 230, except ss. 16.528, 16.752, 16.753 and 16.754. No such contract in which the total estimated debt to be incurred exceeds $5,000 shall be valid until approved by the governor. As used in this subsection, "public utility" means the same as in s. 196.01 (5), and includes a telecommunications carrier as defined in s. 196.01 (8m), and "railroad" means the same as in s. 195.02. "Property" as used in this subsection includes but is not limited to tracks, trestles, signals, grade crossings, rights-of-way, stations, pole lines, plants, substations and other facilities. Nothing in this subsection shall be construed to relieve any railroad or public utility from any financial obligation, expense, duty or responsibility otherwise provided by law relative to such property.

SB431, s. 7 Section 7. Initial applicability.

SB431,9,2 (1) This act first applies to orders or contracts for which bids or competitive sealed proposals are solicited after the effective date of this subsection or, if a procurement is to be made without solicitation of bids or competitive sealed proposals, to any order placed or contract awarded after the effective date of this subsection.

SB431,9,3 (End)