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)
, 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 percent per year from the date such payment was judged to have been due until the date of payment of the judgment.
Support accounts for persons with disabilities. 16.643(1)(1)
Termination of account.
Upon the death of an account owner whose account is part of a qualified ABLE program under section 529A
of the Internal Revenue Code, the account shall terminate, and upon such termination any amount remaining in the account shall be recoverable by the state under s. 49.849
as property of a decedent that is recoverable under that statute. Any amount that remains in the account following such recovery under s. 49.849
shall be paid to the account owner's estate. Recovery authorized under this subsection may relate only to public assistance received by a beneficiary on and after the date on which an account is established.
Eligibility for long-term care programs.
A person who is determining eligibility for an individual for a long-term care program under s. 46.27
, or 46.277
, the family care benefit under s. 46.286
, the family care partnership program, the long-term care program defined in s. 46.2899 (1)
, or any other demonstration program or program operated under a waiver of federal medicaid law that provides long-term care benefits shall exclude from the determination any income from assets accumulated in an account that is part of a qualified ABLE program under section 529A
of the Internal Revenue Code.
History: 2015 a. 55
“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 percent 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.
“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
; 2009 a. 28
; 2011 a. 10
; 2013 a. 20
“Contractual services" include technical and professional services. 65 Atty. Gen. 251.
Subscription service and procurement system. 16.701(1)(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 provide an electronic procurement system to manage all aspects of procurement under this subchapter. The electronic procurement system may supplement or supplant the subscription service under sub. (1)
, and the department may permit prospective vendors to provide product or service information, as provided in sub. (2)
, through the electronic procurement system. If the department provides an electronic procurement system under this subsection, the department may require that an agency use the system. The department may assess agencies and vendors for the costs of the system under this subsection in accordance with a method the department develops.
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.
See also s. Adm 9.01
, Wis. adm. code.
The department may maintain a bidders list. 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 bidders list 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 the bidders list of all bids or competitive sealed proposals that are solicited by the department or other agency. The department may remove any person from the bidders list for cause.
Contractual services. 16.705(1)(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.
The determinations under sub. (1)
do not apply to a contract entered into by any of the following:
Notwithstanding s. 16.75 (2m)
, and except as provided in s. 16.75 (2) (b)
, the department and its agents may purchase contractual services only if those services are performed within the United States. This requirement does not apply to any of the following:
Contractual services that are not available to be performed within the United States.
Contractual services if the payment for any part of the contractual services is made from federal moneys.
The renewal, modification, or extension of any contract in effect on March 18, 2010.
Contractual services purchased by the Board of Regents of the University of Wisconsin System with moneys appropriated under s. 20.285 (1) (ge)
, or (w)
If contractual services are purchased by the department or its agent that would require an individual performing the services to have access to federal tax information received directly from the federal Internal Revenue Service or from a source that is authorized by the federal Internal Revenue Service, a background check shall be performed on each individual performing the services. The background investigation may include requiring the individual to be fingerprinted on 2 fingerprint cards each bearing a complete set of the individual's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice shall submit any such fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the individual fingerprinted and obtaining records of his or her criminal arrests and convictions.
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; except as provided in par. (b)
, a requirement for agencies to conduct a uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $50,000 in accordance with standards prescribed in the rules; and, except as provided in par. (b)
, 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 $50,000.
A cost-benefit analysis or continued appropriateness review is not required for the following services:
Services that federal or state law requires to be performed by contract.
Services that must be provided per a contract, license, or warranty, by the original equipment manufacturer or publisher.
Services that cannot be performed by state employees because the state lacks the required infrastructure.
Web-based software application services that are delivered and managed remotely.
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 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.