2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 2,
TO 2009 ASSEMBLY BILL 792
April 6, 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), 103.50 (2), 165.08, 165.25 (11), 221.0903 (4) (b), 5
801.02 (1), 803.09 (1) and (2), 804.01 (2) (intro.), 805.04 (2m) and 893.981; and 6to create
16.42 (1) (h), 16.46 (10), 16.705 (1) (a) 3., (b) and (c), 16.705 (2) (a) 3., 7
(b) and (c), 16.705 (4), 16.705 (5g), (5m) and (5r), 16.705 (6) (a), 16.705 (8) (am), 8
16.705 (9), 16.75 (1) (a) 4., 16.771, 16.871, 20.932, 66.0902, 84.01 (13m) and 9
85.65 of the statutes; relating to: state contractual services and false claims
10submitted to state and local governments, requiring the exercise of
11rule-making authority, and 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. In 6
preparing this information, agencies shall use actual salary and service hour data, 7
if available. If such data are not available, the agency may use estimates. Any 8
estimate relying on state employee salary data for comparable work shall be 9
accompanied by a detailed statement explaining why the use of state employee 10
salary data is necessary and why such use does not misrepresent the salaries paid 11
for contracted positions.
2. The total amount of agency base level funding used to pay for the contracted 13
positions under subd. 1.
3. The amount of funding requested for contracted positions identified under 15
subd. 1 and an identification of the appropriation or appropriations that will be used 16
to fund the contracted positions.
(a) A statement of the number of contracted positions providing 19
services for each state agency that are paid from the agency's base level funding and 20
an identification of the appropriation or appropriations used to fund the contracted 21
(b) A statement of the total amount of each state agency's base level funding 23
used to pay for the contracted positions.
(c) A statement of the amount of funding requested by state agencies for 2
contracted positions and an identification of the appropriation or appropriations that 3
will be used to fund the contracted positions.
AB792-ASA2, s. 3
16.705 (1) of the statutes is renumbered 16.705 (1) (a) (intro.) and 5
amended to read:
(a) (intro.) The department or its agents may contract for services 7which if at least 2 of the following conditions apply:
81. The services
can be performed more economically
or by contract.
92. When considering expertise of the current full-time positions, whether filled
10or vacant, the services can be performed more
efficiently by such
contract than by use
11of employees in those positions
The department shall, by rule, prescribe uniform procedures for 13
determining whether services are appropriate for contracting under this subsection.
AB792-ASA2, 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 16
performed more efficiently by contract.
(b) Notwithstanding par. (a), the department or its agents may contract for any 18
services if the contract will be for a period that is not more than one year and if the 19
contract is not eligible for renewal.
(c) No contract under this section may be automatically renewed.
AB792-ASA2, s. 5
16.705 (2) of the statutes is renumbered 16.705 (2) (a) (intro.) and 22
amended to read:
(a) (intro.) The department shall promulgate rules for the 24
procurement of contractual services by the department and its designated agents, 25
including but not limited to rules the following:
prescribing approval and monitoring processes for contractual service 2
32. Except as provided in par. (b)
, a requirement for agencies to conduct a 4
uniform cost-benefit analysis of each proposed contractual service procurement 5
involving an estimated expenditure of more than $25,000 $50,000
in accordance with 6
standards prescribed in the rules, and, except as provided in par. (b),
a requirement 7
for agencies to review periodically, and before any renewal, the continued 8
appropriateness of contracting under each contractual services agreement involving 9
an estimated expenditure of more than $25,000 $50,000. The rules shall require the
10cost-benefit analysis or continued appropriateness review to compare the costs of
11using a current employee who is providing, or who would provide, the service, or a
12similarly situated employee if the current position is vacant, to the costs of using an
13employee under a contract and shall require the comparison to include all relevant
14costs including the salary and fringe benefit costs, costs of any training that will be
15necessary to fulfill the task, materials, inspections, unemployment insurance,
16transitional costs, liability insurance, overhead, facility costs, taxes, and other
Each officer requesting approval to engage any person to perform 19
contractual services shall submit to the department written justification for such 20
contracting which shall include a description of the contractual services to be 21
procured, justification of need, justification for not contracting with other agencies, 22
a specific description of the scope of contractual services to be performed, and 23
justification for the procurement process if a process other than competitive bidding 24
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 2
requirements of this section and ss. 16.71 to 16.77.
AB792-ASA2, 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 5
under this section perform periodic audits on cost-benefit analyses or continued 6
appropriateness reviews and contracts that required a cost-benefit analysis or 7
continued appropriateness review.
(b) 1. A cost-benefit analysis or continued appropriateness review is not 9
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 13
employees or that state employees have not performed historically and are not able 14
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 16
original equipment manufacturer or publisher unless the contract, license, or 17
warranty has expired or is no longer valid.
2. If an agency is exempted from the cost-benefit analysis or continued 19
appropriateness review under subd. 1. c. only, the department must include in the 20
report submitted under sub. (8) the services that the agency determined were exempt 21
under subd. 1. c.
(c) 1. Neither a cost-benefit analysis nor a continued appropriateness review 23
may be conducted by contract.
2. A cost-benefit analysis may not be shown to a bidder prior to the issuance 25
of a letter of intent to contract.
Any person submitting a bid or proposal or a labor organization that 3
is certified under subch. V or VI of ch. 111 to be the representative of the appropriate 4
collective bargaining unit that is aggrieved by a solicitation for bids or by a letter of 5
intent to contract may protest to the agency that solicited or awarded the contractual 6
services. The protesting party shall file a written notice of intent to protest with, or 7
send an electronic notice of intent to protest to, the agency that solicited or awarded 8
the contractual services within 7 working days after the solicitation or the letter, 9
whichever is appropriate, and shall serve a written or send an electronic protest 10
within 12 working days after issuance of the solicitation or the letter, whichever is 11
AB792-ASA2, 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 14
rules promulgated by the division of legal services under sub. (5m) (a) and of the 15
requirements under sub. (5r).
The division of legal services shall promulgate rules on all of the 17
(a) Actions by the person performing the contractual services that would result 19
in the agency for which contractual services are performed recovering any 20
expenditures for those contractual services that the agency paid to the person 21
performing the contractual services.
(b) Standard performance measures, including quantifiable benchmark 23
indicators, to evaluate persons performing contractual services.
(c) Signing bonuses, reimbursements, and per diem costs included in all 25
contracts for contractual services.
(a) 1. If the cost of the contractual services exceeds $25,000, any 2
expenditures of the person performing the contractual services that exceed its 3
original bid by 10 percent or more may not be paid unless the agency for which the 4
contractual services are performed notifies the governor and the joint committee on 5
finance the amount by which the cost exceeds the original bid and the reason for the 6
2. Subdivision 1. does not apply to contractual services purchased for the 8
University of Wisconsin System, or for any University of Wisconsin System campus 9
or institution, if the contractual services are for research or instructional purposes, 10
as determined by the University of Wisconsin System or the campus or institution, 11
whichever is appropriate.
(b) No person performing contractual services under this section may provide 13
any salary increase if the salary increase would result in greater expenditures for the 14
agency for which the contractual services are performed than the amounts specified 15
in the original bid. This restriction under this paragraph on salary increases does 16
not apply if the salary increase is in accordance with the terms of a collective 17
AB792-ASA2, s. 9
16.705 (6) of the statutes is renumbered 16.705 (6) (b) and amended 19