AB456: Bill Text

4. “Fixed-price variable-scope," in which a contractor provides the maximum amount of work at a cost not to exceed the price fixed by the governmental unit.

The bill creates requirements for soliciting and evaluating proposals using these methods and awarding contracts to the most qualified bidders. The bill requires DOT to use these methods to deliver not less than 5 percent of construction costs of improvement projects by June 30, 2019, not less than 10 percent of construction costs of improvement projects by June 30, 2021, and not less than 20 percent of construction costs of improvement projects by June 30, 2023.

Prevailing wage

The bill eliminates the state prevailing wage law and the highway prevailing wage law.

Generally, under the current prevailing wage laws, laborers, workers, mechanics, and truck drivers employed on the site of certain projects of public works 1) must be paid the prevailing wage rate, as determined by the U.S. Department of Labor under the federal Davis-Bacon Act; and 2) may not be required or permitted to work a greater number of hours per day and per week than the prevailing hours of labor, which is no more than 10 hours per day and 40 hours per week, unless they are paid 1.5 times their basic rate of pay (commonly referred to as overtime pay) for all hours worked in excess of the prevailing hours of labor. The prevailing wage laws include two separate laws: one that applies to certain projects of public works to which the state or any state agency is a party (state prevailing wage law) and one that applies to projects under a contract based on bids to which the state is a party for the construction or improvement of highways (highway prevailing wage law). Also under current law, no local government may enact or administer a prevailing wage law ordinance or any similar ordinance. The bill retains this prohibition.

Local authority

The bill provides that a county or municipal vehicle registration fee, commonly known as a wheel tax, may be imposed only if approved by a majority of electors voting in a referendum at a regularly scheduled election. Under current law, the governing body of a municipality or county may enact an ordinance imposing an annual flat municipal or county registration fee on all motor vehicles registered in this state which are customarily kept in the municipality or county. The fees collected are required to be used for transportation-related purposes only.

The bill provides that no roundabout may be constructed as part of a highway project unless the authority in charge of the highway project obtains approval for the roundabout from the governing body of the municipality where the proposed roundabout would be located.

Transportation funding

The bill requires DOT to transfer state moneys appropriated to DOT for state highway rehabilitation to an appropriation account for local transportation assistance programs. The bill also requires DOT to transfer an equivalent amount of federal moneys appropriated for local transportation assistance programs to an appropriation account for state highway rehabilitation. The bill also requires the Legislative Fiscal Bureau to adjust the appropriation schedule in chapter 20 of the statutes to reflect the amounts in the state highway rehabilitation and local transportation assistance program appropriation accounts immediately following the transfers.

Audit of the Department of Transportation

The bill requires the state auditor to appoint within the Legislative Audit Bureau an inspector general who is assigned to and housed at DOT headquarters and whose services are paid for by DOT. The bill provides that the inspector general may examine the accounts and other financial records of DOT and may review the performance and program accomplishments of DOT.

Under the bill, the inspector general must investigate fraud in DOT programs or activities and report any finding of fraud to the Department of Justice, as well as investigate waste, abuse, or inefficiency in DOT programs or activities. The inspector general must report any finding of waste, abuse, or inefficiency to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations. In addition, in investigating waste, abuse, or inefficiency, the inspector general must endeavor to identify savings for DOT that would pay at least the costs incurred by the inspector general in carrying out the investigations.

The bill also provides that the inspector general may review claims by any person whose substantial interest has been adversely affected by a DOT action or order. If the inspector general elects to review a claim, the inspector general must determine whether the DOT action or order was inconsistent with any law or administrative rule and report all such determinations to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

Reports

The bill requires DOT to report to the appropriate standing committees of the legislature on the progress of highway improvements using alternative project delivery methods.

The bill requires DOT to submit to the governor and the Joint Committee on Finance a plan for developing a funding formula for regions that is based on need rather than baseline funding.

The bill requires the Department of Administration to develop a plan for conducting an audit of DOT to be completed no later than August 31, 2018.

The bill requires the inspector general assigned to DOT to submit an annual report of inspector general activities to the Speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

For further information see the state and local 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:

AB456,1 Section 1. 13.94 (3m) of the statutes is created to read:

AB456,4,3 13.94 (3m) Inspector general. (a) In this subsection, “department" means the department of transportation.

AB456,4,6 (b) The state auditor shall appoint an inspector general who is assigned to and housed at the headquarters of the department. The state auditor shall appoint the inspector general for a 6-year term expiring on March 1 of the odd-numbered year.

AB456,5,4 (c) The inspector general shall be housed at the department headquarters. The department shall provide office space for the inspector general. The department shall pay for all services provided by the inspector general and shall credit the payments to the appropriation account under s. 20.765 (3) (ka).

AB456,5,6 (d) The inspector general shall be strictly nonpartisan and shall at all times observe the confidential nature of any investigation currently being performed.

AB456,5,17 (e) The inspector general may examine the accounts and other financial records of the department to assure that all financial transactions have been made in a legal and proper manner. The inspector general may review the performance and program accomplishments of the department during the fiscal period for which the examination is being conducted to determine whether the department carried out the policy of the legislature and the governor during the period for which the appropriations were made. The department shall at all times with or without notice provide the inspector general access to any books, records, or other documents maintained by the department relating to its expenditures, revenues, operations, and structure, including specifically any such books, records, or other documents that are confidential by law.

AB456,5,18 (f) The inspector general shall do all of the following:

AB456,6,4 1. At his or her discretion, review claims by any person whose substantial interest has been adversely affected by a department action or order. A person requesting such a review must do so before the commencement of a contested case under s. 227.44 or other similar state agency review process. If the inspector general elects to review a claim, the inspector general shall determine whether the department action or order was inconsistent with any law or administrative rule. The inspector general shall report all such determinations to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

AB456,6,6 2. Investigate fraud in department programs or activities and report any finding of fraud to the department of justice.

AB456,6,15 3. Investigate waste, abuse, or inefficiency in department programs or activities and report any finding of waste, abuse, or inefficiency to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations. In investigating waste, abuse, or inefficiency in department programs, the inspector general shall endeavor to identify savings for the department that would pay at least the costs incurred by the inspector general in carrying out the investigations.

AB456,6,21 4. Submit an annual report of inspector general activities to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2), and to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

AB456,6,25 (g) Before the department may expend on its programs and activities any moneys saved as a result of inspector general investigations under par. (f) 2. and 3., the department must first use the moneys to pay all costs incurred by the inspector general in carrying out the investigations.

AB456,7,8 (h) The speaker of the assembly and the senate majority leader, jointly, may direct the inspector general to examine the records or programs of the department. The inspector general shall submit the investigation report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2), and to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

AB456,7,18 (i) The chairpersons of the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations may direct the inspector general to examine the records or programs of the department. The inspector general shall submit the investigation report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2), and to the speaker of the assembly, the senate majority leader, the joint legislative audit committee, the assembly and senate committees on transportation, and the chairpersons of standing committees whose committee jurisdiction includes oversight and accountability of government operations.

AB456,7,21 (j) Upon request of the inspector general, the legislative service agencies shall assist the inspector general in performing any duty or exercising any power under this subsection.

AB456,2 Section 2. 16.856 of the statutes is repealed.

AB456,3 Section 3. 19.36 (3) of the statutes is amended to read:

AB456,8,4 19.36 (3) Contractors' records. Subject to sub. (12), each Each authority shall make available for inspection and copying under s. 19.35 (1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35 (1) (am).

AB456,4 Section 4. 19.36 (12) of the statutes is repealed.

AB456,5 Section 5. 20.395 (2) (fq) of the statutes is created to read:

AB456,8,11 20.395 (2) (fq) Local transportation facility improvement assistance, state funds. All moneys transferred under s. 84.54 (2) for providing public access roads to navigable waters and for the purposes of ss. 84.27 and 84.28 and for improving transportation facilities, including facilities funded under applicable federal acts or programs, that are not state trunk or connecting highways.

AB456,6 Section 6. 20.395 (2) (fx) of the statutes is amended to read:

AB456,8,18 20.395 (2) (fx) Local transportation facility improvement assistance, federal funds. All moneys received from the federal government for providing public access roads to navigable waters and for the purposes of ss. 84.27 and 84.28 and for improving transportation facilities, including facilities funded under applicable federal acts or programs, that are not state trunk or connecting highways, for such purposes and to make the transfers under s. 84.54 (1).

AB456,7 Section 7. 20.395 (3) (cq) of the statutes is amended to read:

AB456,9,16 20.395 (3) (cq) State highway rehabilitation, state funds. As a continuing appropriation, the amounts in the schedule for improvement of existing state trunk and connecting highways; for improvement of bridges on state trunk or connecting highways and other bridges for which improvement is a state responsibility, for necessary approach work for such bridges and for replacement of such bridges with at-grade crossing improvements; for the construction and rehabilitation of the national system of interstate and defense highways and bridges and related appurtenances; for activities under s. 84.04 on roadside improvements; for bridges under s. 84.10; for the bridge project under s. 84.115; for payment to a local unit of government for a jurisdictional transfer under s. 84.02 (8); for the disadvantaged business demonstration and training program under s. 84.076; for the purpose specified in s. 84.017 (3); for the transfers required under 1999 Wisconsin Act 9, section 9250 (1) and 2003 Wisconsin Act 33, section 9153 (4q); and for the purposes described under 1999 Wisconsin Act 9, section 9150 (8g), 2001 Wisconsin Act 16, section 9152 (4e), and 2007 Wisconsin Act 20, section 9148 (9i) (b) and (9x); and to make the transfers under s. 84.54 (2). This paragraph does not apply to any southeast Wisconsin freeway megaprojects under s. 84.0145, to any southeast Wisconsin freeway rehabilitation projects under s. 84.014 that also qualify as major highway projects under s. 84.013, or to the installation, replacement, rehabilitation, or maintenance of highway signs, traffic control signals, highway lighting, pavement markings, or intelligent transportation systems, unless incidental to the improvement of existing state trunk and connecting highways.

AB456,8 Section 8. 20.395 (3) (cx) of the statutes is amended to read:

AB456,9,25 20.395 (3) (cx) State highway rehabilitation, federal funds. All moneys received from the federal government for improvement of existing state trunk and connecting highways; for improvement of bridges on state trunk or connecting highways and other bridges for which improvement is a state responsibility, for necessary approach work for such bridges and for replacement of such bridges with at-grade crossing improvements; for the construction and rehabilitation of the national system of interstate and defense highways and bridges and related appurtenances; for activities under s. 84.04 on roadside improvements; for the bridge project under s. 84.115; for the purpose specified in s. 84.017 (3); and for the disadvantaged business demonstration and training program under s. 84.076; and all moneys received under 2003 Wisconsin Act 33, section 9153 (4q); and all moneys transferred under s. 84.54 (1) for such purposes. This paragraph does not apply to any southeast Wisconsin freeway megaprojects under s. 84.0145 or to any southeast Wisconsin freeway rehabilitation projects under s. 84.014 that also qualify as major highway projects under s. 84.013.

AB456,9 Section 9. 20.765 (3) (ka) of the statutes is amended to read:

AB456,10,16 20.765 (3) (ka) Audit bureau reimbursable audits. The amounts in the schedule for the provision of auditing services requested by state agencies or by the federal government, for audits specified in s. 13.94 (1s) (c) and, for audits of the department of revenue relating to the state lottery and verifications of the odds of winning a lottery game under s. 565.37 (5), and for services provided by the inspector general under s. 13.94 (3m). All moneys received by the legislative audit bureau from charges assessed to departments under s. 13.94 (1s) and (3m) shall be credited to this appropriation account.

AB456,10 Section 10. 43.17 (9) (a) of the statutes is amended to read:

AB456,11,3 43.17 (9) (a) All contracts for public construction made by a federated public library system whose territory lies within 2 or more counties or by a federated public library system whose territory lies within a single county with a population of at least 500,000 shall be let by the public library system board to the lowest responsible bidder in accordance with s. 62.15 (1) to (11) and (14). For purposes of this section, the system board possesses the powers conferred by s. 62.15 on the board of public works and the common council, except that s. 62.15 (1m) does not apply to any contract made by the system board for public construction. All contracts made under this section shall be made in the name of the federated public library system and shall be executed by the system board president and such other board officer as the system board designates.

AB456,11 Section 11. 59.20 (3) (a) of the statutes is amended to read:

AB456,11,16 59.20 (3) (a) Every sheriff, clerk of the circuit court, register of deeds, treasurer, comptroller, register of probate, clerk, and county surveyor shall keep his or her office at the county seat in the offices provided by the county or by special provision of law; or if there is none, then at such place as the board directs. The board may also require any elective or appointive county official to keep his or her office at the county seat in an office to be provided by the county. All such officers shall keep their offices open during the usual business hours of any day except Sunday, as the board directs. With proper care, the officers shall open to the examination of any person all books and papers required to be kept in his or her office and permit any person so examining to take notes and copies of such books, records, papers, or minutes therefrom except as authorized in par. (c) and ss. 19.36 (10) to (12) and (11) and 19.59 (3) (d) or under ch. 69.

AB456,12 Section 12. 59.52 (29) (a) of the statutes is amended to read:

AB456,12,9 59.52 (29) (a) All Except as provided in par. (c), all public work, including any contract for the construction, repair, remodeling or improvement of any public work, building, or furnishing of supplies or material of any kind where the estimated cost of such work will exceed $25,000 shall be let by contract to the lowest responsible bidder. Any public work, the estimated cost of which does not exceed $25,000, shall be let as the board may direct. If the estimated cost of any public work is between $5,000 and $25,000, the board shall give a class 1 notice under ch. 985 before it contracts for the work or shall contract with a person qualified as a bidder under s. 66.0901 (2). A contract, the estimated cost of which exceeds $25,000, shall be let and entered into under s. 66.0901, except as provided in par. (c) and except that the board may by a three-fourths vote of all the members entitled to a seat provide that any class of public work or any part thereof may be done directly by the county without submitting the same for bids. This subsection does not apply to public construction if the materials for such a project are donated or if the labor for such a project is provided by volunteers. This subsection does not apply to highway contracts which the county highway committee or the county highway commissioner is authorized by law to let or make.

AB456,13 Section 13. 59.52 (29) (c) of the statutes is created to read:

AB456,12,11 59.52 (29) (c) 1. In this paragraph:

AB456,12,14 a. “Alternative technical concepts" means a proposed alternative to the technical requirements provided by the county in the request for proposals for a project.

AB456,12,18 b. “Construction manager-general contractor project" means a two-phase project for which all services unrelated to construction are provided in the first phase by a contractor who, subject to county approval, also provides construction services in the second phase.

AB456,12,21 c. “Design-build-finance project” means a project for which the design and construction services are provided by a single entity and financing is provided in whole or in part by the same entity.

AB456,12,24 d. “Design-build project" means a project for which architectural, surveying, engineering, construction, and related services for a project are provided by a single contractor.

AB456,13,3 e. “Fixed-price variable-scope project" means a project with a broad scope for which a contractor provides the maximum amount of work at a cost not to exceed the price fixed by the county.

AB456,13,9 2. A county may designate any project as a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project if the county conducts an analysis of the project and makes a written determination that it is in the best interests of the county to designate the project. The analysis and determination shall include the impact of the selected project delivery method on the anticipated schedule, completion date, and cost of the project.

AB456,13,11 3. A county may not solicit proposals for a project under this paragraph unless the county does one of the following:

AB456,13,13 a. Not later than 30 days before issuing the request for qualifications, issues a notice of intent to receive qualifications that includes a description of the project.

AB456,13,16 b. For a single-phase project delivery, not later than 30 days before issuing the request for proposals, issues a notice of intent to receive proposals that includes a description of the project.

AB456,13,20 4. a. Subject to subd. 4. b., a county may solicit proposals for design-build, design-build-finance, construction manager-general contractor, and fixed-price variable-scope projects by using one or more requests for qualifications, short-listing of qualified bidders, requests for proposals, and negotiations.

AB456,14,2 b. Except as provided in subd. 4. c., a county shall use a two-phase process for a design-build project. In the first phase, the county shall evaluate the qualifications of the bidders, create a short list of the most highly qualified bidders, and request proposals from those bidders. The county may not consider projected cost in its creation of the short list. In the second phase, the county shall evaluate and select from among the responsive proposals.

AB456,14,5 c. For a design-build project with an estimated cost of less than $100,000, a county may solicit proposals and evaluate and select from among the responsive proposals.

AB456,14,11 5. If a county issues a request for qualifications under this paragraph, the county shall evaluate responses based on the evaluation criteria provided in the request for qualifications and create a short list of the most qualified bidders. The county shall short-list not more than 5 bidders and, unless the county finds that it is justified by an emergency, not less than 2 bidders. A request for qualifications issued under this paragraph may contain any of the following information:

AB456,14,12 a. The scope of work for the project.

AB456,14,15 b. A requirement that the bidder identify certain personnel and describe the experience of the personnel and the conditions under which personnel may be replaced.

AB456,14,18 c. The evaluation criteria for the qualifications and the relative importance of those criteria. The evaluation criteria may address the bidder's technical and financial qualifications.

AB456,14,19 d. The county's prequalification, licensing, and registration requirements.

AB456,14,21 e. The maximum number of bidders the county will short-list to submit proposals.

AB456,14,22 f. Any other relevant information the county determines is appropriate.

AB456,15,12 6. a. A request for proposals issued under this paragraph may contain the form and amount of required bid security; the terms of the contract, including scope and performance requirements, schedule or completion date requirements, subcontractor requirements, payment and performance security requirements, and insurance requirements; the requirements for the technical component of the proposal, including a description of the level of design, scope and type of renderings, drawings, and specifications to be provided in the proposal; the requirements for the price component of the proposal; the evaluation criteria for the proposals, including technical criteria, innovation, and schedule, and the relative importance of those criteria; a process for the county to review and accept alternative technical concepts; requirements regarding the bidder's qualifications; and any other relevant information the county determines is appropriate. For a construction manager-general contractor project, the county may require the bidder to submit a lump sum price for the direct costs to perform the required preconstruction services and a percentage markup on those direct costs.

AB456,15,16 b. Prior to receiving proposals, the county may conduct confidential meetings and exchange confidential information with bidders to promote understanding of the request for proposals, review alternative technical concepts, or discuss other issues related to the procurement.

AB456,15,18 c. The county shall establish a due date for proposals that is not more than 120 days after the date on which the county issues the request for proposals.

AB456,15,25 7. a. The county shall appoint a technical review committee to review, evaluate, score, and rank proposals. The county shall appoint to the committee not fewer than 5 individuals, the majority of whom are design professionals. Each member of a technical review committee must certify that no conflict of interest exists between the member and the bidders. If the county determines a conflict exists with a member, the county shall remove the member from the committee and substitute a replacement member.

AB456,16,10 b. Except as provided in subd. 7. c., the technical review committee shall evaluate and assign a technical score to each proposal. The committee shall award not less than 70 percent of available points to each proposal that is responsive to the request for proposals, not less than 5 percent of available points to each proposal that uses contractors based in this state for not less than 50 percent of the dollar value of the contract, and not more than 25 percent of available points based on any criteria in the project scope that the county determines is critical to the improvement project. The committee shall divide the bid price for a proposal by the technical score to produce an overall score for each proposal. Notwithstanding s. 66.0901, the county shall award the contract to the bidder with the proposal with the lowest overall score.

AB456,16,13 c. For a fixed-price variable-scope project, notwithstanding s. 66.0901, the technical review committee shall award the contract to the bidder that proposes the largest volume of work within the price that the county fixed for the project.

AB456,16,19 d. If the bidder awarded the contract is unable or unwilling to execute the contract, the county may award the contract to the bidder whose proposal has the next lowest overall score. For a fixed-price variable-scope project, if the bidder awarded the contract is unable or unwilling to execute the contract, the county may award the contract to the bidder whose proposal has the next largest volume of work within the price that the county fixed for the project.

AB456,16,22 8. A contract for a design-build, design-build-finance, construction manager-general contractor, or fixed-price variable-scope project may include provisions regarding all of the following:

AB456,16,23 a. Compensation of or payments to the contractor.

AB456,16,25 b. Grounds for termination of the contract, including the county's right to terminate for convenience.