2013 Wisconsin Act 20

16.765 (8) If further violations of this section are committed during the term of the contract, the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Health Insurance Risk-Sharing Plan Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation may permit the violating party to complete the contract, after complying with this section, but thereafter the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Health Insurance Risk-Sharing Plan Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation shall request the department to place the name of the party on the ineligible list for state contracts, or the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Health Insurance Risk-Sharing Plan Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation may terminate the contract without liability for the uncompleted portion or any materials or services purchased or paid for by the contracting party for use in completing the contract.

20,123 Section 123. 16.84 (1) of the statutes is amended to read:

16.84 (1) Have charge of, operate, maintain and keep in repair the state capitol building, the executive residence, the light, heat and power plant, any heating, cooling, and power plants serving state properties that are owned by this state except those that are operated by an agency, as defined in s. 16.52 (7), or by a lessee under s. 13.48 (14) or 16.848 (1), the state office buildings and their power plants, the grounds connected therewith, and such other state properties as are designated by law. All costs of such operation and maintenance shall be paid from the appropriations under s. 20.505 (5) (ka) and (kb), except for debt service costs paid under s. 20.866 (1) (u). The department shall transfer moneys from the appropriation under s. 20.505 (5) (ka) to the appropriation account under s. 20.505 (5) (kc) sufficient to make principal and interest payments on state facilities and payments to the United States under s. 13.488 (1) (m).

20,124 Section 124. 16.848 (title) of the statutes is amended to read:

16.848 (title) Sale or lease of certain state property or facilities.

20,125 Section 125. 16.848 (1) of the statutes is renumbered 16.848 (1) (a) and amended to read:

16.848 (1) (a) Except as provided in sub. (2), the department may offer for sale or lease any state-owned real property, if the department determines that the sale or lease is in the best interest of the state, unless prohibited under the state or federal constitution or federal law or the sale is conducted as a part of a procedure to enforce an obligation to this state. Any sale may be either on the basis of public bids, with the department reserving the right to reject any bid in the best interest of the state, or on the basis of negotiated prices as determined through a competitive or transparent process. If the department receives an offer to purchase or lease property offered under this subsection, the department may submit a report to the building commission recommending acceptance of the offer. The report shall contain a description of the property and the reasons for the recommendation. The department may recommend the sale or lease of a parcel of property with or without the approval of the agency, as defined in s. 16.52 (7), having jurisdiction of over the property and regardless of whether the property is included in an inventory submitted under s. 13.48 (14) (d). If the building commission approves the proposed sale or lease, the department may sell the property shall submit the proposed sale or lease to the joint committee on finance for approval under par. (b).

20,125m Section 125m. 16.848 (1) (b) and (c) of the statutes are created to read:

16.848 (1) (b) If the department proposes to sell or lease any property identified in par. (a), the department shall first notify the joint committee on finance in writing of its proposed action. The department shall not proceed with the proposed action unless the proposed action is approved by the committee. Together with any notification, the department shall also provide all of the following:

1. The estimated value of the property as determined by the department and by at least one qualified privately owned assessor.

2. The full cost of retiring any remaining public debt incurred to finance the acquisition, construction, or improvement of the property.

3. A cost-benefit analysis that considers the short-term and long-term costs and benefits to the state from selling or leasing the property.

4. The length and conditions of any proposed sale or lease between this state and a proposed purchaser or lessee.

5. The estimated budgetary impact of the proposed sale or lease upon affected state agencies for at least the current and following fiscal biennium.

5m. The methodology to ensure the competitive and transparent sale of the property.

6. Any other information requested by the committee.

(c) Except with respect to property identified in sub. (2), if any agency, as defined in s. 16.52 (7), has authority to sell or lease real property under any other law, the authority of that agency does not apply after the department notifies the agency in writing that an offer of sale or sale, or a lease agreement, is pending with respect to the property under this paragraph. If the sale or lease is not completed and no further action is pending with respect to the property, the authority of the agency to sell or lease the property is restored. If the department sells or leases any state-owned real property under this paragraph, the department may attach such conditions to the sale or lease as it finds to be necessary or appropriate to carry out the sale or lease in the best interest of the state. If the department sells or leases a state-owned heating, cooling, or power plant under this paragraph, the department may contract with the purchaser or lessee to purchase the output of the plant.

20,126 Section 126. 16.848 (1e) of the statutes is created to read:

16.848 (1e) If the department sells or leases any real property under sub. (1) that was under the jurisdiction of an agency, as defined in s. 16.52 (7), prior to the sale or lease, the agency shall convey all systems, fixtures, or additional property interests specified by the department to the purchaser or lessee of the property on terms specified by the department. If the department sells or leases a state-owned heating, cooling, or power plant that is under the jurisdiction of an agency, as defined in s. 16.52 (7), the agency shall convey all real and personal property associated with the plant to the purchaser or lessee on terms specified by the department.

20,127 Section 127. 16.848 (1m) of the statutes is created to read:

16.848 (1m) If any property that is proposed to be sold by the department under sub. (1) is co-owned by a nonstate entity, the department shall afford to that entity the right of first refusal to purchase the share of the property owned by the state on reasonable financial terms established by the department.

20,128 Section 128. 16.848 (1s) of the statutes is created to read:

16.848 (1s) (a) If the department sells or leases any facility under sub. (1) that is operated by an agency, as defined in s. 16.52 (7), on the day prior to the effective date of the sale or lease the secretary shall, notwithstanding s. 16.50 (1), require submission of expenditure estimates for approval under s. 16.50 (2) for each agency that proposes to expend moneys from any appropriation for the operation of the facility during the fiscal biennium in which the facility is sold or leased.

(b) Notwithstanding s. 16.50 (2), the secretary shall disapprove any such estimate for the period during which the facility is not operated by the agency. Subject to approval under par. (d), the secretary may then require the use of the amounts of any disapproved expenditure estimates for the purpose of purchase of contractual services from the facility or payment of the costs of purchasing services that were provided by the facility from an alternative source. Subject to approval under par. (d), if the department sells or leases a facility under this subsection, the secretary may identify any full-time equivalent positions authorized for the agency that was operating the facility the duties of which primarily relate to the management or operation of the facility, and may decrease the authorized full-time equivalent positions for the agency by the number of positions so identified effective on the effective date of the sale or lease.

(c) Notwithstanding s. 20.001 (3) (a) to (c) and subject to approval under par. (d), the secretary may lapse or transfer to the general fund from the unencumbered balance of appropriations to any agency, other than sum sufficient appropriations or appropriations of program revenues to the Board of Regents of the University of Wisconsin System or appropriations of segregated or federal revenues, any amount appropriated to an agency that is determined by the secretary to be allocated for the management or operation of the facility that was sold or leased effective on the effective date of the sale or lease.

(d) Prior to taking any action to reallocate authorized expenditures, decrease authorized positions, or lapse or transfer moneys under par. (b) or (c), the secretary shall submit the proposed action in writing to the joint committee on finance. The secretary shall not proceed with the proposed action unless the proposed action is approved by the committee.

20,129 Section 129. 16.848 (2) (a) of the statutes is repealed.

20,129m Section 129m. 16.848 (2) (am) of the statutes is created to read:

16.848 (2) (am) Subsection (1) does not apply to any property for which the cost of acquisition, construction, and improvement was financed with at least 50 percent federal funds or at least 50 percent gift or grant funds.

20,130 Section 130. 16.848 (2) (b) of the statutes is repealed.

20,131 Section 131. 16.848 (2) (gw) of the statutes is repealed.

20,131m Section 131m. 16.848 (2) (gx) of the statutes is created to read:

16.848 (2) (gx) Subsection (1) does not apply to any property that is owned or leased by the investment board.

20,132 Section 132. 16.848 (4) (a) of the statutes is amended to read:

16.848 (4) (a) Except as provided in s. 13.48 (14) (e), if there is any outstanding public debt used to finance the acquisition, construction, or improvement of any property that is sold or leased under sub. (1), the department shall deposit a sufficient amount of the net proceeds from the sale or lease of the property in the bond security and redemption fund under s. 18.09 to repay the principal and pay the interest on the debt, and any premium due upon refunding any of the debt. If there is any outstanding public debt used to finance the acquisition, construction, or improvement of any property that is sold or leased under sub. (1), the department shall then provide a sufficient amount of the net proceeds from the sale or lease of the property for the costs of maintaining federal tax law compliance applicable to the debt. If the property was acquired, constructed, or improved with federal financial assistance, the department shall pay to the federal government any of the net proceeds required by federal law. If the property was acquired by gift or grant or acquired with gift or grant funds, the department shall adhere to any restriction governing use of the proceeds. Except as required under ss. 13.48 (14) (e), 20.395 (9) (qd), and 51.06 (6), if there is no such debt outstanding, there are no moneys payable to the federal government, and there is no restriction governing use of the proceeds, and if the net proceeds exceed the amount required to be deposited, paid, or used for another purpose under this paragraph subsection, the department shall first use the net proceeds or remaining net proceeds to pay principal and interest costs on outstanding public debt supported by the same funding source and issued under the same bonding purpose authorization that was used to finance the acquisition, construction, or improvement of the property that is sold or leased under sub. (1) . If any net proceeds remain thereafter, the department shall use the proceeds to pay principal and interest costs on other outstanding public debt.

20,133 Section 133. 16.848 (4) (b) 1. of the statutes is repealed and recreated to read:

16.848 (4) (b) 1. To the extent that debt service on the property being sold or leased was paid from a segregated fund, other outstanding public debt related to that segregated fund should be redeemed.

20,134 Section 134. 16.848 (4) (b) 2. of the statutes is repealed.

20,135 Section 135. 16.848 (4) (b) 3. of the statutes is amended to read:

16.848 (4) (b) 3. The extent to which general obligation debt that was issued to acquire, build, or improve the property being sold or leased is subject to current optional redemption, would require establishment of an escrow, or could be assigned for accounting purposes to another statutory bond purpose.

20,136 Section 136. 16.848 (4) (b) 5. of the statutes is amended to read:

16.848 (4) (b) 5. The costs of maintaining federal tax law compliance in the selection of general obligation debt to be redeemed.

20,137 Section 137. 16.848 (4) (c) of the statutes is created to read:

16.848 (4) (c) If there are any outstanding revenue obligations, issued pursuant to subch. II of ch. 18, used to finance the acquisition, construction, or improvement of any property that is sold or leased under sub. (1), the department shall deposit a sufficient amount of the net proceeds from the sale or lease of the property in the respective redemption fund provided under s. 18.561 (5) or 18.562 (3) to repay the principal and pay the interest on the revenue obligations, and any premium due upon refunding any of the revenue obligations. If there are any outstanding revenue obligations, issued pursuant to subch. II of ch. 18, used to finance the acquisition, construction, or improvement of any property that is sold or leased under sub. (1), the department shall then provide a sufficient amount of the net proceeds from the sale or lease of the property for the costs of maintaining federal tax law compliance applicable to the revenue obligations. For the purpose of paying principal and interest costs on other outstanding revenue obligations, the secretary may cause outstanding revenue obligations to be called for redemption on or following their optional redemption date, establish one or more escrow accounts to redeem obligations at their optional redemption date, or purchase bonds on the open market. Except as required under ss. 13.48 (14) (e), 20.395 (9) (qd), and 51.06 (6), if the net proceeds exceed the amount required to be deposited, paid, or used for another purpose under this paragraph, the department shall use the net proceeds or remaining net proceeds to pay principal and interest costs on other similar revenue obligations.

20,138 Section 138. 16.849 of the statutes is created to read:

16.849 Facility design services for state agencies. The department may provide facility design services to agencies, as defined in s. 16.70 (1e). The department may assess a fee to agencies for which the department performs services under this section.

20,138m Section 138m. 16.85 (2) of the statutes is amended to read:

16.85 (2) To furnish engineering, architectural, project management, and other building construction services whenever requisitions therefor are presented to the department by any agency. The department may deposit moneys received from the provision of these services in the account under s. 20.505 (1) (kc) or in the general fund as general purpose revenue — earned. In this subsection, "agency" means an office, department, independent agency, institution of higher education, association, society, or other body in state government created or authorized to be created by the constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority created in subch. II of ch. 114 or subch. III of ch. 149 or in ch. 231, 233, 234, 237, 238, or 279.

20,139 Section 139. 16.855 (1) of the statutes is renumbered 16.855 (1m) and amended to read:

16.855 (1m) The department shall let by contract to the lowest qualified responsible bidder all construction work when the estimated construction cost of the project exceeds $50,000, except for construction work authorized under s. 16.858 and except as provided in sub. (1r) or (10m) or s. 13.48 (19). If factors other than dollar amounts are required to be evaluated for a project, the department shall specify a formula that will convert the other factors into a dollar value for comparison.

(1r) If a bidder is not a Wisconsin firm and the department determines that the state, foreign nation or subdivision thereof in which the bidder is domiciled grants a preference to bidders domiciled in that state, nation or subdivision in making governmental purchases, the department shall give a preference over that bidder to Wisconsin firms, if any, when awarding the contract, in the absence of compelling reasons to the contrary. The department may enter into agreements with states, foreign nations and subdivisions thereof for the purpose of implementing this subsection.

20,140 Section 140. 16.855 (1g) of the statutes is created to read:

16.855 (1g) In this section:

(a) "Mechanical, electrical, or plumbing subcontractor" is a contractor that performs mechanical, electrical, plumbing, or fire protection work and enters into a contract with a general prime contractor to perform their division of work.

(b) "Qualified bidder" means a person that the department certifies under sub. (9m) (b) 1.

(c) "Qualified responsible bidder" means a person who is a qualified bidder and who is a responsible bidder.

(d) "Responsible bidder" means a person that the department certifies under sub. (9m) (b) 2.

(e) "Single prime contracting" means bidding and contracting through a process in which only a general prime contractor has a contractual relationship with the state and all mechanical, electrical, or plumbing subcontractors are identified by the department and are subcontractors to the general prime contractor.

20,141 Section 141. 16.855 (2) (a) 5. of the statutes is amended to read:

16.855 (2) (a) 5. Date, when and place where plans will be available.

20,142 Section 142. 16.855 (2) (a) 6. of the statutes is created to read:

16.855 (2) (a) 6. That the department shall consider only bids from persons who are responsible bidders and, unless sub. (9m) (ar) 2. applies, qualified bidders.

20,143 Section 143. 16.855 (9) of the statutes is renumbered 16.855 (9m) (b) 1. c. and amended to read:

16.855 (9m) (b) 1. c. The If the department may require bidders to submit so requires or the bidder will be considered unqualified, the bidder has submitted a sworn statements statement as to financial ability, equipment, and experience in construction and require such other information as may be necessary to determine their the bidder's competency.

20,144 Section 144 . 16.855 (9m) of the statutes is created to read:

16.855 (9m) (ag) In this subsection, "bidder" includes a potential bidder.

(ar) 1. The department shall certify bidders as qualified bidders under par. (b) 1. and responsible bidders under par. (b) 2. and shall administer a registration process for all bidders submitting bids on any construction project under this section. The department shall issue, in a timely manner, a certification decision on a complete application for certification. A certification under this subdivision is valid for 2 years except the department may decertify a bidder if the department determines that the bidder no longer meets the qualifications under par. (b) and if the department follows a decertification process developed by rule that provides to the bidder notice, hearing, and a means to appeal.

2. Notwithstanding sub. (1m) or (14) (d), the department may waive the condition of certification as a qualified bidder if the project is of such magnitude as to limit competition if the conditions under par. (b) 1. were required.

3. The department shall consider for certification under par. (b) associations consisting of at least 2 contracting firms that are organized for the purpose of entering into a construction contract as a single entity if at least one of the contracting firms is qualified under par. (b) and if the assignment of, and provisions for the continuity of, the various responsibilities within the association are agreed upon before the contract is awarded.

(b) 1. To be certified as a qualified bidder, a bidder must meet all of the following conditions:

a. The bidder has completed at least one project that involved similar work to the work being bid and the project was at least 50 percent of the size or value of the division of the project being bid. If the department determines that more experience is necessary for a particular project, the department may include additional requirements in the specifications and certify bidders accordingly.

b. The bidder has access to all necessary equipment and the organizational capacity and technical competence necessary to perform the project work properly and expeditiously.

2. To be certified as a responsible bidder, a bidder must meet all of the following conditions:

a. The bidder maintains a permanent place of business.

b. The bidder submits a sworn statement, upon the department's request, that indicates that the bidder has adequate financial resources to complete the work being bid, taking into account any other work the bidder is currently under contract to complete.

c. The bidder is bondable for the term of the proposed contract and is able to obtain a 100 percent performance bond and a separate 100 percent payment bond.

d. The bidder has a record of satisfactorily completing projects. In determining this factor, the department shall consider if the bidder has completed all contracts in accordance with drawings and specifications; diligently pursued execution of the work and completed contracts according to the time schedule, taking account of extensions granted; fulfilled guarantee requirements of contracts; if the contract included an affirmative action program requirement, complied with the requirement; and, if the contract included a safety program requirement, complied with the requirement.

e. The bidder is not on an ineligible list that the department maintains under s. 16.705 (9) or 16.765 (9) or on a list that another agency maintains for persons who violated construction-related statutes or administrative rules.

f. The bidder has been in business for at least 12 months.

g. The bidder is a legal entity and authorized to do business in Wisconsin.

h. The bidder has performed at least one other public project for a government entity.

i. The bidder can provide information, upon request, to the department on the bidder's ownership, management, and control.

j. In any jurisdiction, the bidder, in the previous 10 years, has not been debarred from any government contracts and has not been found to have committed tax avoidance or evasion.

k. In any jurisdiction, in the previous 10 years, the bidder has not been disciplined under a professional license.

L. In any jurisdiction, none of the bidder's employees and no member of the bidder's organization has been disciplined under a professional license that is currently in use.

20,145 Section 145. 16.855 (10m) (am) 3. of the statutes is amended to read:

16.855 (10m) (am) 3. The department may award any contract to a minority business or disabled veteran-owned business, or a business that is both a minority business and a disabled veteran-owned business, that if the business is a qualified responsible bidder and the business submits a qualified responsible bid that is no more than 5 percent higher than the apparent low bid.

20,146 Section 146. 16.855 (13) of the statutes is repealed and recreated to read:

16.855 (13) (a) 1. In any project under this section let under single prime contracting, the department shall identify, as provided under par. (b), the mechanical, electrical, or plumbing subcontractors who have submitted the lowest bids and who are qualified responsible bidders. A general prime contractor who is submitting a bid under sub. (14) shall include the subcontractors so identified.