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.
The department shall, annually on or before October 15, submit to the governor, the joint committee on finance, the joint legislative audit committee and the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3)
, a report concerning the number, value and nature of contractual service procurements authorized for each agency during the preceding fiscal year. The report shall also include, with respect to contractual service procurements by agencies for the preceding fiscal year:
A summary of the cost-benefit analyses completed by agencies in compliance with rules promulgated by the department under sub. (2)
Recommendations for elimination of unneeded contractual service procurements and for consolidation or resolicitation of existing contractual service procurements.
The department shall maintain a list of persons that are or have been a party to a contract with the state under this subchapter who have violated a provision of this subchapter or a contract under this subchapter. The parties on the list are ineligible for state contracts and no state contract may be awarded to a party on the ineligible list. The department may remove any party from the ineligible list if the department determines that the party's practices comply with this subchapter and provide adequate safeguards against future violations of this subchapter or contracts under this subchapter.
See also ch. Adm 10
, Wis. adm. code.
Procuring statutes and regulations, such as Adm Ch. 10, Wis. Adm. Code, are designed to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to ensure that the public receives the best work at the most reasonable price practicable. As such, these regulations are intended for the benefit and protection of the public and not of the individual bidder. PRN Associates LLC v. DOA, 2009 WI 53
, 317 Wis. 2d 656
, 766 N.W.2d 559
It is possible for the state to lease one of its parking facilities to an independent contractor upon a finding that an independent contractor can perform the service of operating and maintaining the parking facility more economically or more efficiently than the civil service system. 62 Atty. Gen. 183.
Purchasing; powers. 16.71(1)
Except as otherwise required under this section and s. 16.78
or as authorized in s. 16.74
, the department shall purchase and may delegate to special designated agents the authority to purchase all necessary materials, supplies, equipment, all other permanent personal property and miscellaneous capital, and contractual services and all other expense of a consumable nature for all agencies. In making any delegation, the department shall require the agent to adhere to all requirements imposed upon the department in making purchases under this subchapter. All materials, services and other things and expense furnished to any agency and interest paid under s. 16.528
shall be charged to the proper appropriation of the agency to which furnished.
The department shall not delegate to any executive branch agency, other than the board of regents of the University of Wisconsin System, the authority to enter into any contract for materials, supplies, equipment, or contractual services relating to information technology or telecommunications prior to review and approval of the contract by the department. The department may delegate this authority to the University of Wisconsin-Madison. No executive branch agency, other than the board of regents of the University of Wisconsin System, may enter into any such contract without review and approval of the contract by the department. The University of Wisconsin-Madison may enter into any such contract without review and approval by the department. Any executive branch agency that enters into a contract relating to information technology under this section shall comply with the requirements of s. 16.973 (13)
. Any delegation to the board of regents of the University of Wisconsin System or to the University of Wisconsin-Madison is subject to the limitations prescribed in s. 36.585
The department of administration shall delegate authority to make all purchases for prison industries to the department of corrections. This delegation may be withdrawn by the department of administration only with the consent of, and in accordance with the terms specified by, the joint committee on finance, for failure to comply with applicable purchasing rules, procedures or statutory requirements.
If the department makes or delegates to the department of revenue or to any other designated purchasing agent under sub. (1)
the authority to make a major procurement, as defined in s. 565.01 (4)
, for the department of revenue, the department, department of revenue or designated purchasing agent shall comply with the requirements under s. 565.25
The department shall delegate to the Board of Regents of the University of Wisconsin System and to the University of Wisconsin-Madison the authority to enter into contracts for materials, supplies, equipment, or services that relate to higher education and that agencies other than the University of Wisconsin-System do not commonly purchase.
The department shall delegate authority to the department of corrections to enter into contracts for global positioning system tracking equipment, implementation, and tracking services under ss. 301.48 (3)
The department shall delegate authority to the department of financial institutions to enter into vendor contracts under s. 224.51
The department may assess any agency or municipality to which it provides services under this subchapter for the cost of the services provided to the agency or municipality. The department may also identify savings that the department determines to have been realized by an agency to which it provides services under this subchapter and may assess the agency for not more than the amount of the savings identified by the department.
See also ch. Adm 7
and s. Adm 10.13
, Wis. adm. code.
The applicability of ch. 16, subch. IV is determined by the purpose for the purchase, not the source of funds. 64 Atty. Gen. 4.
Purchasing, duties. 16.72(1)
The department of administration shall check or have checked, as to quantity and quality, the delivery to agencies of all purchases made under s. 16.71
The department shall prepare standard specifications, as far as possible, for all state purchases. By “standard specifications" is meant a specification, either chemical or physical or both, prepared to describe in detail the article which the state desires to purchase, and trade names shall not be used. On the formulation, adoption and modification of any standard specifications, the department of administration shall also seek and be accorded without cost, the assistance, advice and cooperation of other agencies and officers. Each specification adopted for any commodity shall, insofar as possible, satisfy the requirements of any and all agencies which use it in common.
Except as provided in ss. 16.25 (4) (b)
, and 565.25 (2) (a) 4.
, the department shall prepare or review specifications for all materials, supplies, equipment, other permanent personal property and contractual services not purchased under standard specifications. Such “nonstandard specifications" may be generic or performance specifications, or both, prepared to describe in detail the article which the state desires to purchase either by its physical properties or by its programmatic utility. When appropriate for such nonstandard items or services, trade names may be used to identify what the state requires, but wherever possible 2 or more trade names shall be designated and the trade name of any Wisconsin producer, distributor or supplier shall appear first.
To the extent possible, the department shall write specifications so as to permit the purchase of materials manufactured in the United States, as defined in s. 16.754 (1)
In writing the specifications under this subsection, the department and any other designated purchasing agent under s. 16.71 (1)
shall incorporate requirements for the purchase of products made from recycled materials and recovered materials if their use is technically and economically feasible. Each authority other than the University of Wisconsin Hospitals and Clinics Authority and the Lower Fox River Remediation Authority, in writing specifications for purchasing by the authority, shall incorporate requirements for the purchase of products made from recycled materials and recovered materials if their use is technically and economically feasible. The specifications shall include requirements for the purchase of the following materials:
Construction materials, including insulating materials.
Furnishings, including rugs, carpets and furniture.
Highway equipment, including signs, signposts, reflectors, guardrails, lane dividers and barricades.
In writing specifications under this subsection, the department, any other designated purchasing agent under s. 16.71 (1)
, and each authority other than the University of Wisconsin Hospitals and Clinics Authority and the Lower Fox River Remediation Authority shall incorporate requirements relating to the recyclability and ultimate disposition of products and, wherever possible, shall write the specifications so as to minimize the amount of solid waste generated by the state, consistent with the priorities established under s. 287.05 (12)
. All specifications under this subsection shall discourage the purchase of single-use, disposable products and require, whenever practical, the purchase of multiple-use, durable products.
Except as provided in ss. 16.71
or as otherwise provided in this subchapter and the rules promulgated under s. 16.74
and this subchapter, all supplies, materials, equipment and contractual services shall be purchased for and furnished to any agency only upon requisition to the department. The department shall prescribe the form, contents, number and disposition of requisitions and shall promulgate rules as to time and manner of submitting such requisitions for processing. No agency or officer may engage any person to perform contractual services without the specific prior approval of the department for each such engagement. Purchases of supplies, materials, equipment or contractual services by the legislature, the courts or legislative service or judicial branch agencies do not require approval under this paragraph.
The department shall promulgate rules for the declaration as surplus of supplies, materials and equipment in any agency and for the transfer to other agencies or for the disposal by private or public sale of supplies, materials and equipment. Except as provided in s. 51.06 (6)
, in either case, the department shall deposit the net proceeds in the budget stabilization fund, except that the department shall transfer any supplies, materials or equipment declared to be surplus to the department of tourism, upon request of the department of tourism, at no cost, if the transfer is permitted by the agency having possession of the supplies, materials or equipment.
The department shall provide the department of revenue with a copy of each contract for a major procurement, as defined in s. 565.01 (4)
, for the department of revenue.
The department and the historical society jointly shall promulgate rules identifying types of historically significant materials.
Before an agency may dispose of surplus materials that are of a type identified in rules promulgated under par. (b)
, the agency shall provide an opportunity for the historical society to inspect and obtain historically significant surplus materials for its collections. The historical society may not be required to compensate an agency for releasing historically significant surplus materials to the historical society under this paragraph.
The department may purchase educational technology materials, supplies, equipment, or contractual services from orders placed with the department by school districts, cooperative educational service agencies, technical college districts, the board of regents of the University of Wisconsin System, and the University of Wisconsin-Madison.
The department shall ensure that every agency includes on all stationery utilized by the agency for correspondence outside the agency at least one telephone number where the agency may be contacted, at least one facsimile transmission number for the agency, if the agency has such a number, and at least one electronic mail address for the agency, if the agency has such an address.
History: 1975 c. 41
; 1977 c. 418
; 1981 c. 20
; 1983 a. 92
; 1983 a. 333
; 3w; 1985 a. 29
, 3200 (1)
; 1985 a. 332
; 1987 a. 119
; 1989 a. 31
; 1991 a. 39
; 1995 a. 27
; 1997 a. 27
; 1999 a. 9
; 2001 a. 16
; 2003 a. 33
; 2005 a. 74
; 2007 a. 20
; 2011 a. 32
; 2013 a. 20
See also chs. Adm 5
, Wis. adm. code.
Computer programs may be sold as surplus provided the programs were not created for resale purposes. 59 Atty. Gen. 144.
Cooperative purchasing. 16.73(1)
The department may enter into an agreement with a municipality or group of municipalities, and municipalities may enter into agreements with each other, under which any of the parties may agree to participate in, administer, sponsor or conduct purchasing transactions under a joint contract for the purchase of materials, supplies, equipment, permanent personal property, miscellaneous capital or contractual services. This subsection does not apply to construction contracts that are subject to s. 16.855
The department may purchase and store in warehouses articles that may be needed by agencies and municipalities. The department may sell stored articles to municipalities at cost.
The department may, upon request, make available to municipalities technical purchasing information including, but not limited to, standard forms, manuals, product specifications and standards and contracts or published summaries of contracts, including price and delivery information.
When it is in the best interest of the state and consistent with competitive purchasing practices, the department may enter into agreements with purchasing agents of any other state or the federal government under which any of the parties may agree to participate in, administer, sponsor or conduct purchasing of materials, supplies, equipment, permanent personal property, miscellaneous capital or contractual services. The state may purchase from any vendor selected as a result of such purchasing agreements. This paragraph does not apply to construction contracts that are subject to s. 16.855
The department may cooperate with purchasing agents and other interested parties of any other state or the federal government to develop uniform purchasing specifications under s. 16.72 (2)
on a regional or national level to facilitate cooperative interstate purchasing transactions.
The department or its agents may enter into an agreement with the University of Wisconsin System under which either of the parties may agree to participate in, administer, or conduct purchasing transactions under a contract for the purchase of materials, supplies, equipment, permanent personal property, miscellaneous capital, or contractual services.
The department shall administer a program to facilitate purchases of large equipment that is needed by municipalities. The department shall purchase large equipment as a part of the program. The department may, by rule, prescribe requirements for participation in the program and for participation in specific purchases under the program.
Legislative and judicial branch purchasing. 16.74(1)(1)
All supplies, materials, equipment, permanent personal property and contractual services required within the legislative branch shall be purchased by the joint committee on legislative organization or by the house or legislative service agency utilizing the supplies, materials, equipment, property or services. All supplies, materials, equipment, permanent personal property and contractual services required within the judicial branch shall be purchased by the director of state courts or the judicial branch agency utilizing the supplies, materials, equipment, property or services.
Requisitions for legislative branch purchases shall be signed by the cochairpersons of the joint committee on legislative organization or their designees for the legislature, by an individual designated by either house of the legislature for the house, or by the head of any legislative service agency, or the designee of that individual, for the legislative service agency. Requisitions for judicial branch purchases shall be signed by the director of state courts or by an individual designated by the director for the courts, or by the head of any judicial branch agency, or the designee of that individual, for the judicial branch agency.
Contracts for purchases by the senate or assembly shall be signed by an individual designated by the organization committee of the house making the purchase. Contracts for other legislative branch purchases shall be signed by an individual designated by the joint committee on legislative organization. Contracts for purchases by the judicial commission or judicial council shall be signed by an individual designated by the commission or council, respectively. Contracts for other judicial branch purchases shall be signed by an individual designated by the director of state courts.
Each legislative and judicial officer who is authorized to make purchases or engage services under this section may prescribe the form of requisitions or contracts for the purchases and engagements. Requisitions and contracts shall be maintained by the officer and shall be subject to inspection and copying under subch. II of ch. 19
. No such requisition or contract need be filed with the department.
Each legislative and judicial officer shall file all bills and statements for purchases and engagements made by the officer under this section with the secretary, who shall audit and authorize payment of all lawful bills and statements. No bill or statement for any purchase or engagement for the legislature, the courts or any legislative service or judicial branch agency may be paid until the bill or statement is approved by the requisitioning or contracting officer under sub. (2)
The department, upon request, shall make recommendations and furnish assistance to the courts, to either house of the legislature or to any legislative service or judicial branch agency regarding purchasing procedure. The department, upon request, shall process requisitions for purchases submitted by the courts, the legislature or any legislative service or judicial branch agency and shall procure materials, supplies, equipment, property and services for the courts, the legislature and legislative service and judicial branch agencies in accordance with the purchasing procedure prescribed for executive branch agencies under this subchapter.
All stationery and printing purchased under this section shall be procured from the lowest responsible bidder.
History: 1985 a. 29
Buy on low bid, exceptions. 16.75(1)(a)1.1.
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)
, and (10m)
and ss. 16.705 (1r)
, 16.73 (4) (a)
, 50.05 (7) (f)
, 153.05 (2m) (a)
, and 287.15 (7)
, 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.
If a vendor is not a Wisconsin producer, distributor, supplier or retailer and the department determines that the state, foreign nation or subdivision thereof in which the vendor is domiciled grants a preference to vendors domiciled in that state, nation or subdivision in making governmental purchases, the department and any agency making purchases under s. 16.74
shall give a preference over that vendor to Wisconsin producers, distributors, suppliers and retailers, if any, when awarding the order or contract. The department may enter into agreements with states, foreign nations and subdivisions thereof for the purpose of implementing this subdivision.
Bids may be received only in accordance with such specifications as are adopted by the department as provided in this subsection. Any or all bids may be rejected. Whenever sealed bids are invited, each bid, with the name of the bidder, shall be entered on a record, and each record with the successful bid indicated shall, after the award or letting of the contract, be opened to public inspection. Where a low bid is rejected, a complete written record shall be compiled and filed, giving the reason in full for such action. Any waiver of sealed, advertised bids as provided in sub. (2m)
shall be entered on a record kept by the department and open to public inspection.
Except as provided in subd. 2.
, when the estimated cost exceeds $25,000, the department shall invite bids to be submitted.
Bids are not required if the estimated cost does not exceed $50,000.
If subd. 1.
requires bids to be solicited, the department either shall solicit sealed bids to be opened publicly at a specified date and time, or shall solicit bidding by auction to be conducted electronically at a specified date and time. Whenever bids are invited, due notice inviting bids shall be published as a class 2 notice, under ch. 985
or posted on the Internet at a site determined or approved by the department. The bid opening or auction shall occur at least 7 days after the date of the last insertion of the notice or at least 7 days after the date of posting on the Internet. The notice shall specify whether sealed bids are invited or bids will be accepted by auction, and shall give a clear description of the materials, supplies, equipment, or contractual services to be purchased, the amount of any bond, share draft, check, or other draft to be submitted as surety with the bid or prior to the auction, and the date and time that the public opening or the auction will be held.
Except as provided in sub. (7)
, when the estimated cost is $25,000 or less, the award may be made in accordance with simplified procedures established by the department for such transactions.
If bids are solicited by auction, the award may be made in accordance with simplified competitive procedures established by the department for such transactions.