Public works, contracts, bids. 66.0901(1)(ae)
“Agreement with a labor organization" means any agreement with a labor organization, including a collective bargaining agreement, a project labor agreement, or a community workforce agreement.
“Municipality" means the state or a town, city, village, school district, board of school directors, sewer district, drainage district, technical college district or other public or quasi-public corporation, officer, board or other public body charged with the duty of receiving bids for and awarding any public contracts.
“Person" means an individual, partnership, association, limited liability company, corporation or joint stock company, lessee, trustee or receiver.
“Political subdivision" means a city, village, town, or county.
“Public contract" means a contract for the construction, execution, repair, remodeling or improvement of a public work or building or for the furnishing of supplies or material of any kind, proposals for which are required to be advertised for by law.
“Subcontractor" means a person whose relationship to the principal contractor is substantially the same as to a part of the work as the latter's relationship is to the proprietor. A “subcontractor" takes a distinct part of the work in a way that the “subcontractor" does not contemplate doing merely personal service.
Except when necessary to secure federal aid, whenever a political subdivision lets a public contract by bidding, the political subdivision shall comply with all of the following:
The bidding shall be on the basis of sealed competitive bids.
The contract shall be awarded to the lowest responsible bidder.
Except when necessary to secure federal aid, a political subdivision may not use a bidding method that gives preference based on the geographic location of the bidder or that uses criteria other than the lowest responsible bidder in awarding a contract.
(2) Bidder's proof of responsibility.
A municipality intending to enter into a public contract may, before delivering any form for bid proposals, plans, and specifications to any person, except suppliers, and others not intending to submit a direct bid, require the person to submit a full and complete statement sworn to before an officer authorized by law to administer oaths. The statement shall consist of information relating to financial ability, equipment, experience in the work prescribed in the public contract, and other matters that the municipality requires for the protection and welfare of the public in the performance of a public contract. The statement shall be in writing on a standard form of a questionnaire that is adopted and furnished by the municipality. The statement shall be filed in the manner and place designated by the municipality. The statement shall not be received less than 5 days prior to the time set for the opening of bids. The contents of the statement shall be confidential and may not be disclosed except upon the written order of the person furnishing the statement, for necessary use by the public body in qualifying the person, or in cases of actions against, or by, the person or municipality. The governing body of the municipality or the committee, board, or employee charged with, or delegated by the governing body with, the duty of receiving bids and awarding contracts shall properly evaluate the statement and shall find the maker of the statement either qualified or unqualified.
(3) Proof of responsibility, condition precedent.
No bid shall be received from any person who has not submitted the statement as provided in sub. (2)
, provided that any prospective bidder who has once qualified to the satisfaction of the municipality, committee, board or employee, and who wishes to become a bidder upon subsequent public contracts under the same jurisdiction, need not separately qualify on each public contract unless required so to do by the municipality, committee, board or employee.
(4) Rejection of bids.
If the municipality, committee, board or employee is not satisfied with the sufficiency of the answer contained in the statement provided under sub. (2)
, the municipality, committee, board or employee may reject or disregard the bid.
(5) Corrections of errors in bids.
If a person submits a bid or proposal for the performance of public work under any public contract to be let by a municipality and the bidder claims that a mistake, omission or error has been made in preparing the bid, the bidder shall, before the bids are opened, make known the fact that an error, omission or mistake has been made. If the bidder makes this fact known, the bid shall be returned to the bidder unopened and the bidder may not bid upon the public contract unless it is readvertised and relet upon the readvertisement. If a bidder makes an error, omission or mistake and discovers it after the bids are opened, the bidder shall immediately and without delay give written notice and make known the fact of the mistake, omission or error which has been committed and submit to the municipality clear and satisfactory evidence of the mistake, omission or error and that it was not caused by any careless act or omission on the bidder's part in the exercise of ordinary care in examining the plans or specifications and in conforming with the provisions of this section. If the discovery and notice of a mistake, omission or error causes a forfeiture, the bidder may not recover the moneys or certified check forfeited as liquidated damages unless it is proven before a court of competent jurisdiction in an action brought for the recovery of the amount forfeited, that in making the mistake, error or omission the bidder was free from carelessness, negligence or inexcusable neglect.
(6) Separation of contracts; classification of contractors.
In public contracts for the construction, repair, remodeling or improvement of a public building or structure, other than highway structures and facilities, a municipality may bid projects based on a single or multiple division of the work. Public contracts shall be awarded according to the division of work selected for bidding. Except as provided in sub. (6m)
, the municipality may set out in any public contract reasonable and lawful conditions as to the hours of labor, wages, residence, character and classification of workers to be employed by any contractor, classify contractors as to their financial responsibility, competency and ability to perform work and set up a classified list of contractors. The municipality may reject the bid of any person, if the person has not been classified for the kind or amount of work in the bid.
(6m) Prohibited practices.
A municipality may not do any of the following in a specification for bids for a public contract under this section:
Require that a bidder enter into or adhere to an agreement with a labor organization.
Consider as a factor in making an award under this section whether any bidder has or has not entered into an agreement with a labor organization.
Require that a bidder enter into, adhere to, or enforce any agreement that requires, as a condition of employment, that the bidder or bidder's employees become or remain members of, or be affiliated with, a labor organization or pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization or a labor organization's health, welfare, retirement, or other benefit plan or program.
(6s) Protected activity.
Nothing in this section prohibits employers or employees from entering into agreements or engaging in any other activity protected by the National Labor Relations Act, 29 USC 151
(7) Bidder's certificate.
When bidding on a public contract, the bidder shall incorporate and make a part of the bidder's proposal for doing any work or labor or furnishing any material in or about any public work or contract of the municipality a sworn statement by the bidder, or if not an individual by one authorized, that the bidder or authorized person has examined and carefully prepared the proposal from the plans and specifications and has checked the same in detail before submitting the proposal or bid to the municipality. As a part of the proposal, the bidder also shall submit a list of the subcontractors the bidder proposes to contract with and the class of work to be performed by each. In order to qualify for inclusion in the bidder's list a subcontractor shall first submit a bid in writing, to the general contractor at least 48 hours prior to the time of the bid closing. The list may not be added to or altered without the written consent of the municipality. A proposal of a bidder is not invalid if any subcontractor and the class of work to be performed by the subcontractor has been omitted from a proposal; the omission shall be considered inadvertent or the bidder will perform the work personally.
(8) Settlement of disputes; defaults.
Whenever there is a dispute between a contractor or surety or the municipality as to whether there is compliance with the provisions of a public contract as to the hours of labor, wages, residence, character and classification of workers employed by the contractor, the determination of the municipality is final. If a violation of these provisions occurs, the municipality may declare the contract in default and request the surety to perform or relet upon advertisement the remaining portion of the public contract.
Notwithstanding sub. (1) (as)
, in this subsection, “municipality" does not include the department of transportation.
As the work progresses under a contract involving $1,000 or more for the construction, execution, repair, remodeling or improvement of a public work or building or for the furnishing of supplies or materials, regardless of whether proposals for the contract are required to be advertised by law, the municipality, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work done, which entitles the contractor to receive the amount of the estimate, less the retainage, from the proper fund. The retainage shall be an amount equal to not more than 5 percent of the estimate until 50 percent of the work has been completed. At 50 percent completion, further partial payments shall be made in full to the contractor and no additional amounts may be retained unless the architect or engineer certifies that the job is not proceeding satisfactorily, but amounts previously retained shall not be paid to the contractor. At 50 percent completion or any time after 50 percent completion when the progress of the work is not satisfactory, additional amounts may be retained but the total retainage may not be more than 10 percent of the value of the work completed. Upon substantial completion of the work, an amount retained may be paid to the contractor. When the work has been substantially completed except for work which cannot be completed because of weather conditions, lack of materials or other reasons which in the judgment of the municipality are valid reasons for noncompletion, the municipality may make additional payments, retaining at all times an amount sufficient to cover the estimated cost of the work still to be completed or may pay out the entire amount retained and receive from the contractor guarantees in the form of a bond or other collateral sufficient to ensure completion of the job. For the purposes of this section, estimates may include any fabricated or manufactured materials and components specified, previously paid for by the contractor and delivered to the work or properly stored and suitable for incorporation in the work embraced in the contract.
(11) Limitation on performance of private construction work by political subdivisions. 66.0901(11)(a)(a)
In this subsection, “construction project" means a road, sewer, water, stormwater, wastewater, grading, parking lot, or other infrastructure-related project or the provision of construction-related services for such a project.
A political subdivision may not use its own workforce to perform a construction project for which a private person is financially responsible.
“Public building plan information" means construction plans, designs, specifications, and related materials for construction work undertaken, or proposed to be undertaken, by a municipality pursuant to a public contract.
“Public plan room" means a nonprofit organization that gathers and makes available to the public for inspection and copying public building plan information.
Notwithstanding s. 19.35 (3)
, if a municipality receives a request for public building plan information from a public plan room, the municipality shall provide the requested information by electronic copy, and without charging a fee, if all of the following apply:
The public building plan information relates to a structure or building constructed, or proposed to be constructed, by a municipality.
The public plan room allows the public to register and inspect or copy the public building plan information that it obtains under this subsection without charging a fee.
A municipality shall provide the requested information under par. (b)
even if the municipality contracts with another person to assist the municipality with public contracts, related construction projects, or the management and storage of public building plan information.
Under sub. (5), a bidder has no right to withdraw its bid or demand that it be amended. Under the terms of the proposal, the commission was entitled to retain the deposit upon the plaintiff's failure to execute the contract within 10 days of the notice of award. Nelson Inc. v. Sewerage Commission of Milwaukee, 72 Wis. 2d 400
, 241 N.W.2d 390
Acceptance of the bid is a precondition to forfeiture of the bidder's deposit under sub. (5). Gaastra v. Village of Fairwater, 77 Wis. 2d 7
, 252 N.W.2d 60
When a bid error was discovered after the contract was let, the dispute was governed by the arbitration clause in the contract, not by sub. (5). Turtle Lake v. Orvedahl Const., 135 Wis. 2d 385
, 400 N.W.2d 475
(Ct. App. 1986).
Sub. (5) does not contemplate bid amendment after bids are open, and municipalities do not have the authority to permit a bidder to amend its bid. The only relief available to a bidder that acknowledges a mistake, error, or omission in its bid is to request that its bid be withdrawn from consideration. James Cape & Sons Company v. Mulcahy, 2005 WI 128
, 285 Wis. 2d 200
, 700 N.W.2d 243
Acceptance of a bid by a municipality is a precondition to forfeiture of a bidder's deposit under sub. (5). The 4th sentence of sub. (5) specifically contemplates a court proceeding to determine whether a proposal guaranty should be returned to the bidder when a municipality has retained the proposal guaranty. If the bidder can show by clear and satisfactory evidence that its error, omission, or mistake was not caused by any careless act or omission in the exercise of ordinary care in examining the plans or specifications and was in conformance with the conditions of the statute, but the municipality is able to show how the bidder's withdrawal has prejudiced or will prejudice the municipality, the bidder will have to meet the higher standard that it was free from carelessness, negligence, or inexcusable neglect to avoid forfeiture. James Cape & Sons Company v. Mulcahy, 2005 WI 128
, 285 Wis. 2d 200
, 700 N.W.2d 243
A municipality has no power to enter into a contract unless the bid proposal complies with sub. (7). When a bidder submitted no statement providing any of the assurances required by sub. (7) the bid proposal did not comply with sub. (7), and the municipality had no authority to enter into a contract with the bidder based on that proposal. If there was a contract, it was void at its inception. Andrews Construction, Inc. v. Town of Levis, 2006 WI App 180
, 296 Wis. 2d 89
, 722 N.W. 2d 389
Police cars need not be purchased by competitive bid since they are “equipment" and not “supplies [or] material." 66 Atty. Gen. 284.
Municipalities may require bidders to include a list of subcontractors under sub. (7). Counties may reject a proposal for failure to include a complete list, except when omitted subcontractors themselves submitted timely, written bids to the general contractor. 76 Atty. Gen. 29
“Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
“Publicly funded private construction project" means a construction project in which the developer, investor, or owner of the project receives direct financial assistance from a local governmental unit for the erection, construction, repair, remodeling, demolition, including any alteration, painting, decorating, or grading, of a private facility, including land, a building, or other infrastructure. “Publicly funded private construction project" does not include a project of public works.
The legislature finds that the enactment of ordinances or other enactments by local governmental units requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor would be logically inconsistent with, would defeat the purpose of, and would go against the repeals of s. 66.0904
, 2009 stats., and s. 66.0903 (2)
, 2013 stats. Therefore, this section shall be construed as an enactment of statewide concern for the purposes of facilitating broader participation with respect to bidding on projects of public works, ensuring that wages accurately reflect market conditions, providing local governments with the flexibility to reduce costs on capital projects, and reducing spending at all levels of government in this state.
A local governmental unit may not enact and administer an ordinance or other enactment requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor or any similar ordinance or enactment. Any such ordinance or other enactment that is in effect on July 1, 2011, is void.
The liability of a prime contractor for damages to employees of a subcontractor under s. 779.14 (2), 1991 stats., did not include wage penalties under s. 66.293 (3), 1991 stats. Consent to be a named party under s. 66.293 (3), 1991 stats., may occur after one year if the action is for damages under this section in the name of the plaintiffs and other similarly situated employees and was filed within the one-year time period. Strong v. C.I.R., Inc. 184 Wis. 2d 619
, 516 N.W.2d 719
In determining whether a project constitutes a public work, each project must be evaluated separately considering the character, ownership, use, and maintenance of the project, and whether the work is being done for the appropriate municipality. Elliott v. Morgan, 214 Wis. 2d 253
, 571 N.W.2d 866
(Ct. App. 1997), 96-1904
Individual employees have a strong privacy interest in their names, particularly when coupled with their occupation, wages and hours, and place of employment, and the public has a strong interest in protecting that privacy. That public interest substantially outweighs the public interest favoring disclosure of the names in a public records request for wage records of private employees performing a government contract subject to this section. Kraemer Brothers, Inc. v. Dane County, 229 Wis. 2d 86
, 599 N.W.2d 75
(Ct. App. 1999), 98-3061
This section is inapplicable to a private corporation contracting for a medical center. 61 Atty. Gen. 426.
Typical turnkey projects financed by industrial development revenue bonds under s. 66.521, 1973 stats., are not subject to s. 66.293 (3), 1973 stats., concerning prevailing wage rates. 63 Atty. Gen. 145.
Municipalities are subject to s. 66.293 (3), 1973 stats., on contracts for any project of public works, even if done by the turnkey method. 64 Atty. Gen. 100.
Wisconsin's Prevailing Wage Laws: Why They Have Been Preempted by the Employee Retirement Income Security Act. Fulton. 80 MLR 269 (1997).
The preceding annotations relate to this section as it existed prior to 2015 Wis. Act 55
, which made extensive changes to the prevailing wage law.
After referring the matter to the plan commission for report under s. 62.23 (5)
, or the town zoning committee under s. 60.61 (4)
, and after holding a public hearing on the matter with publication of a Class 1 notice of the hearing, the governing body of any city or village, or any town board acting under s. 60.61
, may by ordinance designate any street, road or public way or any part of a street, road or public way wholly within its jurisdiction as a pedestrian mall and prohibit or limit vehicular traffic in the pedestrian mall. Creation of a pedestrian mall under this section does not constitute a discontinuance or vacation of the street, road or public way under s. 66.1003
History: 1993 a. 246
; 1999 a. 150
; Stats. 1999 s. 66.0905.
Part of street; obstructions.
Streets shall provide a right-of-way for vehicular traffic and, where the council requires, a sidewalk on either or both sides of the street. The sidewalk shall be for the use of persons on foot, and no person may encumber the sidewalk with boxes or other material. The sidewalk shall be kept clear for the use of persons on foot.
If the grades of sidewalks are not specially fixed by ordinance, the sidewalks shall be laid to the established grade of the street.
Authority of council.
The council may by ordinance or resolution determine where sidewalks shall be constructed and establish the width, determine the material and prescribe the method of construction of standard sidewalks. The standard may be different for different streets. The council may order by ordinance or resolution sidewalks to be laid as provided in this subsection.
Board of public works.
The board of public works may order any sidewalk which is unsafe, defective or insufficient to be repaired or removed and replaced with a sidewalk in accordance with the standard fixed by the council.
A copy of the ordinance, resolution or order directing the laying, removal, replacement or repair of sidewalks shall be served upon the owner, or an agent, of each lot or parcel of land in front of which the work is ordered. The board of public works, or either the street commissioner or the city engineer if so requested by the council, may serve the notice. Service of the notice may be made by any of the following methods:
Publication in the official newspaper as a class 1 notice, under ch. 985
, together with mailing by 1st class mail if the name and mailing address of the owner or an agent can be readily ascertained.
Default of owner.
If the owner neglects for a period of 20 days after service of notice under par. (c)
to lay, remove, replace or repair the sidewalk the city may cause the work to be done at the expense of the owner. All work for the construction of sidewalks shall be let by contract to the lowest responsible bidder except as provided in s. 62.15 (1)
If the cost of repairs of any sidewalk in front of any lot or parcel of land does not exceed the sum of $100, the board of public works, street commissioner or city engineer, if so required by the council, may immediately repair the sidewalk, without notice, and charge the cost of the repair to the owner of the lot or parcel of land, as provided in this section.
The board of public works shall keep an accurate account of the expenses of laying, removing and repairing sidewalks in front of each lot or parcel of land, whether the work is done by contract or otherwise, and report the expenses to the comptroller. The comptroller shall annually prepare a statement of the expense incurred in front of each lot or parcel of land and report the amount to the city clerk. The amount charged to each lot or parcel of land shall be entered by the clerk in the tax roll as a special charge, as defined under s. 74.01 (4)
, against the lot or parcel of land and collected like other taxes upon real estate. The council by resolution or ordinance may provide that the expense incurred may be paid in up to 10 annual installments and the comptroller shall prepare the expense statement to reflect the installment payment schedule. If annual installments for sidewalk expenses are authorized, the city clerk shall charge the amount to each lot or parcel of land and enter it on the tax roll as a special charge, as defined under s. 74.01 (4)
, against the lot or parcel each year until all installments have been entered, and the amount shall be collected like other taxes upon real estate. The council may provide that the street commissioner or city engineer perform the duties imposed by this section on the board of public works.
(5) Snow and ice.
The board of public works shall keep the sidewalks of the city clear of snow and ice in all cases where the owners or occupants of abutting lots fail to do so, and the expense of clearing in front of any lot or parcel of land shall be included in the statement to the comptroller required by sub. (3) (f)
, in the comptroller's statement to the city clerk and in the special tax to be levied. The city may also impose a fine or penalty for neglecting to keep sidewalks clear of snow and ice.
(6) Repair at city expense.
The council may provide that sidewalks shall be kept in repair by and at the expense of the city or may direct that a certain proportion of the cost of construction, reconstruction or repair be paid by the city and the balance by abutting property owners.
The council may by ordinance implement the provisions of this section, regulate the use of the sidewalks of the city and prevent their obstruction.
(10) Application of section; definitions.
The provisions of this section do not apply to 1st class cities but apply to towns and villages, and when applied to towns and villages: