2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 792
March 23, 2010 - Offered by Representative Jorgensen.
1An Act to renumber and amend
16.705 (1), 16.705 (2), 16.705 (6) and 16.87 (2); 2to amend
16.705 (7), 16.705 (8) (a), 16.75 (1) (b), 16.75 (2m) (b), 16.75 (6) (c), 3
25.18 (1) (a), 25.18 (1) (f), 25.18 (1) (m), 84.01 (13), 84.01 (31), 84.06 (2) (a), 84.06 4
(3), 84.06 (4), 85.015, 102.81 (2), 165.08, 165.25 (11), 221.0903 (4) (b), 801.02 (1), 5
803.09 (1) and (2), 804.01 (2) (intro.), 805.04 (2m) and 893.981; and to create
16.42 (1) (h), 16.46 (10), 16.705 (1) (a) 3., (b) and (c), 16.705 (2) (a) 3., (b) and (c), 7
16.705 (4), 16.705 (5g), (5m) and (5r), 16.705 (6) (a), 16.705 (8) (am), 16.705 (9), 8
16.75 (1) (a) 4., 16.771, 16.871, 20.932, 66.0902, 84.01 (13m) and 85.65 of the 9
statutes; relating to: state contractual services and false claims submitted to
10state and local governments, requiring the exercise of rule-making authority,
11and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
(h) 1. The total amount of contracted positions, including the number 3
of service hours and recurring service rate payments, providing services for the 4
agency that are paid from the agency's base level funding and an identification of the 5
appropriation or appropriations used to fund the contract expenditures.
2. The total amount of agency base level funding used to pay for the contracted 7
positions under subd. 1.
3. The amount of funding requested for contracted positions identified under 9
subd. 1 and an identification of the appropriation or appropriations that will be used 10
to fund the contracted positions.
(a) A statement of the number of contracted positions providing 13
services for each state agency that are paid from the agency's base level funding and 14
an identification of the appropriation or appropriations used to fund the contracted 15
(b) A statement of the total amount of each state agency's base level funding 17
used to pay for the contracted positions.
(c) A statement of the amount of funding requested by state agencies for 19
contracted positions and an identification of the appropriation or appropriations that 20
will be used to fund the contracted positions.
AB792-ASA1, s. 3
16.705 (1) of the statutes is renumbered 16.705 (1) (a) (intro.) and 22
amended to read:
(a) (intro.) The department or its agents may contract for services 24which if at least 2 of the following conditions apply:
251. The services
can be performed more economically
or by contract.
12. When considering expertise of the current full-time positions, whether filled
2or vacant, the services can be performed more
efficiently by such
contract than by use
3of employees in those positions
The department shall, by rule, prescribe uniform procedures for 5
determining whether services are appropriate for contracting under this subsection.
AB792-ASA1, s. 4
16.705 (1) (a) 3., (b) and (c) of the statutes are created to read:
(a) 3. When considering timeliness of delivery, the services can be 8
performed more efficiently by contract.
(b) Notwithstanding par. (a), the department or its agents may contract for any 10
services if the contract will be for a period that is not more than one year and if the 11
contract is not eligible for renewal.
(c) No contract under this section may be automatically renewed.
AB792-ASA1, s. 5
16.705 (2) of the statutes is renumbered 16.705 (2) (a) (intro.) and 14
amended to read:
(a) (intro.) The department shall promulgate rules for the 16
procurement of contractual services by the department and its designated agents, 17
including but not limited to rules the following:
prescribing approval and monitoring processes for contractual service 19
202. Except as provided in par. (b)
, a requirement for agencies to conduct a 21
uniform cost-benefit analysis of each proposed contractual service procurement 22
involving an estimated expenditure of more than $25,000 $50,000
in accordance with 23
standards prescribed in the rules, and, except as provided in par. (b),
a requirement 24
for agencies to review periodically, and before any renewal, the continued 25
appropriateness of contracting under each contractual services agreement involving
an estimated expenditure of more than $25,000
$50,000. The rules shall require the
2cost-benefit analysis or continued appropriateness review to compare the costs of
3using a current employee who is providing, or who would provide, the service, or a
4similarly situated employee if the current position is vacant, to the costs of using an
5employee under a contract and shall require the comparison to include all relevant
6costs including the salary and fringe benefit costs, costs of any training that will be
7necessary to fulfill the task, materials, inspections, unemployment insurance,
8transitional costs, liability insurance, overhead, facility costs, taxes, and other
Each officer requesting approval to engage any person to perform 11
contractual services shall submit to the department written justification for such 12
contracting which shall include a description of the contractual services to be 13
procured, justification of need, justification for not contracting with other agencies, 14
a specific description of the scope of contractual services to be performed, and 15
justification for the procurement process if a process other than competitive bidding 16
is to be used. The department may not approve any contract for contractual services 17
unless it is satisfied that the justification for contracting conforms to the 18
requirements of this section and ss. 16.71 to 16.77.
AB792-ASA1, s. 6
16.705 (2) (a) 3., (b) and (c) of the statutes are created to read:
(a) 3. A requirement that each agency that contracts for services 21
under this section perform periodic audits on cost-benefit analyses or continued 22
appropriateness reviews and contracts that required a cost-benefit analysis or 23
continued appropriateness review.
(b) 1. A cost-benefit analysis or continued appropriateness review is not 25
required for the following services:
a. Services that federal or state law requires to be performed by contract.
b. Services that are incidental to the purchase of a commodity.
c. Services that are substantially dissimilar to services performed by state 4
employees or that state employees have not performed historically and are not able 5
to perform without significant retraining or investment in infrastructure or capital.
d. Services that must be provided per a contract, license, or warranty by the 7
original equipment manufacturer or publisher unless the contract, license, or 8
warranty has expired or is no longer valid.
2. If an agency is exempted from the cost-benefit analysis or continued 10
appropriateness review under subd. 1. c. only, the department must include in the 11
report submitted under sub. (8) the services that the agency determined were exempt 12
under subd. 1. c.
(c) 1. Neither a cost-benefit analysis nor a continued appropriateness review 14
may be conducted by contract.
2. A cost-benefit analysis may not be shown to a bidder prior to the issuance 16
of a letter of intent to contract.
Any person submitting a bid or proposal or a labor organization that 19
is certified under subch. V of ch. 111 to be the representative of the appropriate 20
collective bargaining unit that is aggrieved by a solicitation for bids or by a letter of 21
intent to contract may protest to the agency that solicited or awarded the contractual 22
services. The protesting party shall file a written notice of intent to protest with, or 23
send an electronic notice of intent to protest to, the agency that solicited or awarded 24
the contractual services within 7 working days after the solicitation or the letter, 25
whichever is appropriate, and shall serve a written or send an electronic protest
within 12 working days after issuance of the solicitation or the letter, whichever is 2
AB792-ASA1, s. 8
16.705 (5g), (5m) and (5r) of the statutes are created to read:
All contracts for contractual services must provide notice of the 5
rules promulgated by the division of legal services under sub. (5m) (a) and of the 6
requirements under sub. (5r).
The division of legal services shall promulgate rules on all of the 8
(a) Actions by the person performing the contractual services that would result 10
in the agency for which contractual services are performed recovering any 11
expenditures for those contractual services that the agency paid to the person 12
performing the contractual services.
(b) Standard performance measures, including quantifiable benchmark 14
indicators, to evaluate persons performing contractual services.
(c) Signing bonuses, reimbursements, and per diem costs included in all 16
contracts for contractual services.
(a) 1. If the cost of the contractual services exceeds $25,000, any 18
expenditures of the person performing the contractual services that exceed its 19
original bid by 10 percent or more may not be paid unless the agency for which the 20
contractual services are performed notifies the governor and the joint committee on 21
finance the amount by which the cost exceeds the original bid and the reason for the 22
2. Subdivision 1. does not apply to contractual services purchased for the 24
University of Wisconsin System, or for any University of Wisconsin System campus 25
or institution, if the contractual services are for research or instructional purposes,
as determined by the University of Wisconsin System or the campus or institution, 2
whichever is appropriate.
(b) No person performing contractual services under this section may provide 4
any salary increase if the salary increase would result in greater expenditures for the 5
agency for which the contractual services are performed than the amounts specified 6
in the original bid. This restriction under this paragraph on salary increases does 7
not apply if the salary increase is in accordance with the terms of a collective 8
AB792-ASA1, s. 9
16.705 (6) of the statutes is renumbered 16.705 (6) (b) and amended 10