If s. 16.855 (10s) (a)
provides an applicable standard for the type of agency [energy] consuming equipment being purchased and the purchase will cost more than $5,000 per unit the department, any other designated purchasing agent under s. 16.71 (1)
, any agency making purchases under s. 16.74
, and any authority may not purchase that type of energy consuming equipment unless the specifications for the equipment meet the applicable standards. If there is an applicable standard under s. 16.855 (10s) (a)
, but the energy consuming equipment meeting that standard is not reasonably available, the department, purchasing agent, agency, or authority shall ensure, for purchases over $5,000 per unit, that the energy consuming equipment that is purchased maximizes energy efficiency to the extent technically and economically feasible. The department, purchasing agent, agency, or authority shall not determine that energy consuming equipment that meets the applicable standard under s. 16.855 (10s) (a)
either is not reasonably available on the basis of cost alone or is not cost-effective unless the difference in the cost of the purchase and installation of the equipment that meets the standard and the equipment that would otherwise be installed is greater than the difference in the cost of operating the equipment that meets the standard and the equipment that would otherwise be installed over the anticipated life of the equipment.
NOTE: The correct word is shown in brackets. Corrective legislation is pending.
The department, any other designated purchasing agent under s. 16.71 (1)
, any agency making purchases under s. 16.74
, and any authority shall not enter into any contract or order for the purchase of materials, supplies, equipment, or contractual services with a person if the name of the person, or the name of an affiliate of that person, is certified to the department by the secretary of revenue under s. 77.66
In this subsection, "consumer price index" means the average of the consumer price index over each 12-month period, all items, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.
The department may, by rule, biennially adjust the dollar amounts specified in subs. (1) (b)
, (2m) (b)
and (6) (c)
by an amount not exceeding the amount determined in accordance with this subsection. To determine the maximum adjustment, the department shall calculate the percentage difference between the consumer price index for the 12-month period ending on December 31 of the most recent odd-numbered year and the consumer price index for the base period, calendar year 1995. The department may adjust the amounts specified under subs. (1) (b)
, (2m) (b)
and (6) (c)
by an amount not exceeding that amount biennially, rounded to the nearest multiple of $1,000. If after such rounding the amounts are different than the amounts currently prescribed, the department shall by rule prescribe revised amounts, which amounts shall be in effect until a subsequent rule is promulgated under this subsection. Notwithstanding s. 227.24 (3)
, determinations under this subsection may be promulgated as an emergency rule under s. 227.24
without a finding of emergency.
"Agency" means the department of administration, the department of corrections, the department of health services, the department of public instruction, the department of veterans affairs, and the Board of Regents of the University of Wisconsin System.
"Agency facility" means any state-owned or leased facility that is occupied, operated, or used by an agency.
"Renewable percentage" means the percentage of total annual electric energy that is derived from renewable resources.
"Total annual electric energy" means the total annual amount of electric energy generated or purchased by the state for power, heating, or cooling purposes for all agency facilities.
The department shall establish goals for each agency that are designed to accomplish the following goals:
That the renewable percentage for total annual electric energy by December 31, 2007, is at least 10 percent.
That the renewable percentage for total annual electric energy by December 31, 2011, is at least 20 percent.
In determining whether the goals under par. (b)
are accomplished, the department shall do all the following:
Calculate total annual electric energy on the basis of an average of the total annual electric energy during the 3 years prior to the specified dates.
For any individual agency facility, consider only electric energy that is purchased from the electric provider that serves the agency facility under an arrangement with a term of 10 years or more and electric energy derived from renewable resources owned by the state and produced for use in the agency facility.
Notwithstanding par. (b)
, an agency is not required to generate or purchase electric energy derived from renewable resources if the generation or purchase is not technically feasible or cost-effective.
No later than March 1 of each year, the department shall submit a report to the governor and chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2)
, concerning the degree of attainment and, if applicable, reasons for nonattainment by the state during the preceding year in meeting the goals established by the department under par. (b)
History: 1975 c. 224
; 1977 c. 418
; 1979 c. 34
; 1979 c. 361
; 1981 c. 121
; 1983 a. 27
; 1983 a. 333
; 1983 a. 368
; 1985 a. 29
, 3200 (1)
; 1985 a. 180
; 1987 a. 27
; 1989 a. 31
; 1991 a. 39
; 1993 a. 16
; 1995 a. 27
, 9116 (5)
; 1995 a. 225
; 1997 a. 3
; 1999 a. 9
; 2001 a. 16
; 2003 a. 33
; 2005 a. 22
; 2007 a. 20
, 9121 (6) (a)
; 2007 a. 97
; 2009 a. 136
; 2011 a. 32
; 2011 a. 260
See also ch. Adm 10
, Wis. adm. code.
NOTE: 1991 Wis. Act 170
, which amends this section, contains an extensive prefatory note concerning veteran-owned businesses.
The proper standard for determining whether the department of administration has abused its discretion in setting a bidding requirement is whether its decision was arbitrary or unreasonable. The department is not required to hold a hearing or follow any specified procedure in adopting bid requirements. Glacier State Distribution Services, Inc. v. DOT, 221 Wis. 2d 359
, 585 N.W.2d 652
(Ct. App. 1998), 97-2472
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
The preference for Wisconsin businesses under ss. 16.75 (1) (a) and 16.855 (1) operates only in case of a tie bid. 74 Atty. Gen. 47
Information technology purchases by investment board.
The requirements of ss. 16.72 (2) (b)
and 16.75 (1) (a) 1.
and (2m) (g)
do not apply to procurements authorized to be made by the investment board under s. 16.78 (1)
for information technology purposes.
History: 1999 a. 9
; 2001 a. 16
; 2011 a. 32
Procurement from work centers for severely handicapped individuals. 16.752(1)(c)
"Direct labor" means all labor or work involved in producing or supplying materials, supplies or equipment or performing contractual services including preparation, processing and packing, but excluding supervision, administration, inspection and shipping.
"Severely handicapped individual" means an individual who has a physical, mental or emotional disability which is a substantial handicap to employment and prevents the individual from engaging in normal competitive employment.
"Work center" means a charitable organization or nonprofit institution which is licensed under s. 104.07
and incorporated in this state or a unit of county government which is licensed under s. 104.07
, and which is operated for the purpose of carrying out a program of rehabilitation for severely handicapped individuals and for providing the individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature, and which is engaged in the production of materials, supplies or equipment or the performance of contractual services in connection with which not less than 75% of the total hours of direct labor are performed by severely handicapped individuals.
(2) Duties of the state use board.
The board shall:
Coordinate and monitor the implementation of this section.
Aid in the identification of materials, supplies, equipment and contractual services to be procured by agencies from work centers.
Establish eligibility criteria for work centers participating in the program established under this section.
At least annually, establish and review fair market prices for materials, supplies, equipment and contractual services to be purchased from work centers.
No later than October 1, prepare and submit to the secretary an annual report concerning its activities, including:
A summary of materials, supplies, equipment and contractual services purchased by agencies from work centers.
The names of work centers participating in the program established under this section.
The impact of the program established under this section upon production, work stabilization and program development of, and the number of severely handicapped individuals served by, participating work centers.
At least annually, conduct a review of the prices paid by agencies for the materials, supplies, equipment and contractual services provided by work centers and make any adjustments necessary to establish fair market price.
Promulgate rules regarding specifications, time of delivery and designation of materials, supplies, equipment and contractual services to be supplied by work centers. The board shall maintain a list of each material, supply, piece of equipment or contractual service to be supplied by work centers, and shall assign a number to each item on the list. Specifications of the board shall be consistent with specifications prescribed by agencies for which procurements are made.
Review each order and contract for the impact that the requirements of sub. (7)
have on each supplier or contractor, and assure that the requirements do not affect more than 15% of the supplier's or contractor's current yearly sales or production.
Prescribe a surcharge to be paid by each agency, which shall be payable to the department within a time and in accordance with a procedure specified by the board.
(7) Qualification of work centers.
To qualify for participation under the program established under this section, a work center shall submit to the board a copy of its license under s. 104.07
together with the following documents, transmitted by a letter signed by an officer of the work center:
In the case of a charitable organization or nonprofit institution:
A legible copy of the articles of incorporation of the organization showing the date of filing with the department of financial institutions.
A copy of the bylaws of the organization certified by an officer.
A copy of a letter from the federal internal revenue service indicating that the organization qualifies as a tax-exempt organization.
In the case of a unit of county government, a copy of the ordinance or resolution of the county board of supervisors authorizing or directing the establishment of the work center.
(8) Responsibilities of work centers.
Each work center participating in the program established under this section shall:
Furnish materials, supplies, equipment and services in strict accordance with orders issued by agencies.
Make its records available for public inspection at any reasonable time.
Maintain records of direct labor hours performed in the work center by each worker.
Annually submit to the board a certification that it is qualified to participate in the program established under this section.
Comply with applicable occupational health and safety standards prescribed by the U.S. secretary of labor, the federal occupational health and safety administration or the department of safety and professional services.
Maintain an ongoing placement program for severely handicapped individuals that includes staff which is assigned to perform personal evaluations and to maintain liaisons with appropriate community service organizations.
Maintain a record for each severely handicapped individual employed by it which includes a written report prepared by a licensed physician or psychiatrist, or a qualified psychologist, reflecting the nature and extent of the disability that causes the individual to qualify as severely handicapped.
(9) Purchase of raw materials.
Work centers shall seek broad competition in the purchase of raw materials and components used in the materials, supplies, equipment or services provided to agencies under this section. Work centers shall inform the board before entering into multiyear contracts for such raw materials and components.
(10) Production of such materials, supplies and equipment.
In the production of materials, supplies and equipment under this section, a work center shall make an appreciable contribution to the reforming of raw materials or the assembly of components thereof.
Any alleged violation of this section by a work center shall be investigated by the board. The board shall determine whether a violation has occurred. If the board determines that a violation has occurred, the board may terminate assignments to the work center or suspend assignments for such period as the board determines.
(12) Procurement requirements and procedures. 16.752(12)(a)(a)
Except as provided in pars. (c)
, and (j)
and as authorized under sub. (13)
, agencies shall obtain materials, supplies, equipment and services on the list maintained by the board under sub. (2) (g)
The name, material, supply or equipment number assigned by the board, most recent specification, quantity, unit price, and place and time of delivery.
The type of work and location of service required, most recent specification, work to be performed, estimated volume, and time for completion.
Agencies shall issue purchase orders with sufficient time for the appropriate work center to produce the materials, supplies or equipment or provide the services required.
If any commodity on the list maintained under sub. (2) (g)
is also produced at an institution of the state and the commodity conforms to the specifications on the list, the ordering agency shall purchase the commodity from the institution.
If a specific material, supply or piece of equipment on the list maintained under sub. (2) (g)
also appears on the list of materials, supplies and equipment supplied by the prison industries under s. 16.75 (3t) (c)
, the ordering agency shall notify and provide prison industries with the opportunity to fill the order prior to placing an order.
(h) Paragraph (a)
does not apply to purchases of printing or stationery.
(i) Paragraph (a)
does not apply to procurements by the department relating to information technology or telecommunications.
Grant written authorization to an ordering agency to procure materials, supplies, equipment or services on the list maintained under sub. (2) (g)
from commercial sources when all of the following conditions are met:
The work center to which the order is assigned cannot furnish a material, supply, piece of equipment or service within the period specified in the order.
The material, supply, equipment or service is available from commercial sources in the quantities and at an earlier time than it is available from the work center to which the order is assigned.
Issue an authorization to an ordering agency to procure materials, supplies, equipment or services from commercial sources when the quantity involved is not sufficient for the economical production or provision by the work center to which the order is assigned.
Issue authorizations under pars. (a)
promptly upon request of an ordering agency. The authorization shall be in the form of a certificate which shall specify the quantities and delivery period covered by the authorization. The organization shall transmit a copy of each certificate to the board.
All prices included in the list maintained under sub. (2) (g)
shall be determined by the board on the basis of fair market prices for materials, supplies, equipment or services similar to those supplied by work centers.
Prices for materials, supplies or equipment shall include delivery and packaging, packing and marketing costs.
Price changes for materials, supplies or equipment shall apply to all orders placed on or after the effective date of the change.
Delivery of an order is accomplished when a shipment is received and accepted by the purchasing agency.
(15) Adjustment and cancellation of orders.
If a work center fails to comply with the terms of an order from an agency, the ordering agency shall make every effort to negotiate adjustments before canceling the order.