2021 Wisconsin Act 58

58,312 Section 312. 84.062 (6) (d) of the statutes is created to read:

84.062 (6) (d) The technical review committee cannot consider a proposal responsive unless the proposal includes a conceptual design, critical path method, bar schedule of the work to be performed or similar schematic, design plans and specifications, technical reports, and all other information required by the request for proposals. The technical review committee cannot consider any price or fee included in the technical proposal.

58,313 Section 313. 84.062 (6) (e) of the statutes is created to read:

84.062 (6) (e) The office shall notify the design-builder for each proposal that is determined to be responsive under par. (b) that the design-builder may submit a cost proposal under sub. (7). The office shall reject all proposals that are determined to be nonresponsive under par. (b).

58,314 Section 314. 84.062 (6) (f) of the statutes is renumbered 84.062 (7) (f) and amended to read:

84.062 (7) (f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32).

58,315 Section 315. 84.062 (7) of the statutes is created to read:

84.062 (7) Cost proposals. (a) Design-builders notified under sub. (6) (e) may submit a cost proposal, and the proposal shall include a fixed cost of design, engineering, and construction services prepared by a design professional that contains all design, engineering, construction, and quality assurance and quality control costs of the project.

(b) The technical review committee may open cost proposals only after the technical proposals have been reviewed as provided in sub. (6). At the time and place specified in the request for proposals, the technical review committee shall open cost proposals, read the proposals aloud, and, for a project that will be awarded as a best value design-build contract, make public the committee's scoring of the technical proposals.

(c) Following a review of cost proposals, the department may issue a notice of intent to award a contract, subject to all of the following:

1. For a low bid design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and submitted the lowest responsive cost proposal.

2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the office or for an amount that is less than the maximum fixed price.

3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder's technical proposal score to the bidder's cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 45 percent and not more than 75 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by at least 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal.

(d) Following a review of cost proposals, the office may reject all proposals. If the office rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the office may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The office may pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the office cannot award a stipend to a design-builder whose proposal exceeds that price.

(e) Not fewer than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.

58,316 Section 316. 84.062 (8) of the statutes is created to read:

84.062 (8) Contract award. (a) In this subsection:

1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office.

(b) No later than 10 days following the issuance of a notice of intent to award a design-build contract under sub. (7) (c), the office shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

(c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or member will perform and the dollar value of the services.

(d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or member by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or member by the difference. If the value of construction services to be performed by the design-builder or member is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award.

58,317 Section 317. 84.062 (11) of the statutes is created to read:

84.062 (11) Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows:

1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office cannot award a fee to a proposal that exceeds the maximum fixed price.

2. To all qualified responsible bidders that provide a responsive proposal if the office does not issue a notice of intent to award a contract.

3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals.

(b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

(c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the fee, the department cannot use work product in the design-builder's unsuccessful proposal.

58,318 Section 318. 84.062 (13) of the statutes is created to read:

84.062 (13) Appeals. (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a request for qualifications or a request for proposals issued by the office under this section:

1. The request does not include qualifications, requirements, or other items required under this section.

2. The request does not comply with procedural requirements under this section.

3. The request contains material errors or omissions.

4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

5. The request indicates a bias against or preference for a specific design-builder.

6. The request exceeds the department's authority.

(b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section:

1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

3. There is evidence of collusion or fraud involving either the design-builder that received the notice of intent to award a contract or a member of the technical review committee.

4. There is evidence of bias of a member of the technical review committee.

5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract.

6. The technical proposal or cost proposal submitted by the design-builder that received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced.

(c) If the office prevails upon judicial review, following any protest and appellate court proceedings, the office shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the office all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including the purpose of harassing, causing unnecessary delay, or causing needless cost for the office or parties.

58,319 Section 319. 84.062 (14) of the statutes is created to read:

84.062 (14) Deliverables. (a) No later than 3 months after the effective date of this paragraph .... [LRB inserts date], the office shall prepare a report that establishes a program structure for delivering projects as required under this section. The report shall specify the types of projects to be considered and procedures and timelines for the bid process. The office cannot designate a project as a design-build project prior to the completion of the report.

(b) No later than 6 months after the effective date of this paragraph .... [LRB inserts date], the office shall prepare a design-build procurement manual that incorporates the requirements under this subsection and any applicable requirements under federal law. The manual shall be created by a committee that includes all of the following members:

1. The director.

2. Two employees of the department who represent the division of the department responsible for transportation project development and who each have not fewer than 5 years of experience in the transportation construction industry.

3. One person representing a state association of transportation architectural, engineering, or design companies to be nominated by the governor and appointed with the advice and consent of the senate.

4. One person representing a state association of transportation construction companies to be nominated by the governor and appointed with the advice and consent of the senate.

5. One person representing a national trade group with a design-build certification program and experience in assisting states with the implementation of a design-build program to be nominated by the governor and appointed with the advice and consent of the senate.

(c) No later than December 31, 2026, the office shall submit a report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.

(d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery pilot program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the pilot program should be made permanent.

58,320 Section 320 . 84.555 (1m) of the statutes is amended to read:

84.555 (1m) Notwithstanding sub. (1) and ss. 84.51 and 84.59, the proceeds of general obligation bonds issued under s. 20.866 (2) (uum) are allocated for expenditure obligations under s. 84.95 and s. 84.014, the proceeds of general obligation bonds issued under s. 20.866 (2) (uup) and (uuv) may be used to fund expenditure obligations for the Marquette interchange reconstruction project under s. 84.014, for the reconstruction of the I 94 north-south corridor, as defined in s. 84.014 (5m) (ag) 1. 1m., for the reconstruction of the Zoo interchange, as defined in s. 84.014 (5m) (ag) 2., for the reconstruction of the I 94 east-west corridor, as defined in s. 84.014 (5m) (ag) 1e., for southeast Wisconsin freeway megaprojects under s. 84.0145, and for high-cost state highway bridge projects under s. 84.017, and the proceeds of general obligation bonds issued under s. 20.866 (2) (uur) and (uuv) may be used to fund expenditure obligations for southeast Wisconsin freeway megaprojects under s. 84.0145.

58,321 Section 321 . 84.56 of the statutes is amended to read:

84.56 Additional funding for major highway projects. Notwithstanding ss. 84.51, 84.53, 84.555, and 84.59, major highway projects, as defined under s. 84.013 (1) (a), for the purposes of ss. 84.06 and 84.09, may be funded with the proceeds of general obligation bonds issued under s. 20.866 (2) (uus) and (uuv).

58,322 Section 322 . 84.57 (1) of the statutes is amended to read:

84.57 (1) Notwithstanding ss. 84.51, 84.53, 84.555, 84.59, and 84.95, and subject to sub. (2), state highway rehabilitation projects for the purposes specified in s. 20.395 (6) (aq) may be funded with the proceeds of general obligation bonds issued under s. 20.866 (2) (uut) and (uuv).

58,323 Section 323. 84.59 (6) of the statutes is amended to read:

84.59 (6) The building commission may contract revenue obligations when it reasonably appears to the building commission that all obligations incurred under this section can be fully paid from moneys received or anticipated and pledged to be received on a timely basis. Except as provided in this subsection, the principal amount of revenue obligations issued under this section may not exceed $4,055,372,900, excluding any obligations that have been defeased under a cash optimization program administered by the building commission, to be used for transportation facilities under s. 84.01 (28) and major highway projects for the purposes under ss. 84.06 and 84.09. In addition to the foregoing limit on principal amount, the building commission may contract revenue obligations under this section up to $142,254,600, excluding any obligations that have been defeased under a cash optimization program administered by the building commission, to be used for transportation facilities under s. 84.01 (28) and major highway projects for the purposes under ss. 84.06 and 84.09. In addition to the foregoing limit on principal amount, the building commission may contract revenue obligations under this section up to $128,258,200, excluding any obligations that have been defeased under a cash optimization program administered by the building commission, to be used for transportation facilities under s. 84.01 (28) and major highway projects for the purposes under ss. 84.06 and 84.09. In addition to the foregoing limits on principal amount, the building commission may contract revenue obligations under this section as the building commission determines is desirable to refund outstanding revenue obligations contracted under this section, to make payments under agreements or ancillary arrangements entered into under s. 18.55 (6) with respect to revenue obligations issued under this section, and to pay expenses associated with revenue obligations contracted under this section.

58,324 Section 324. 85.20 (4m) (a) 6. cm. of the statutes is amended to read:

85.20 (4m) (a) 6. cm. From the appropriation under s. 20.395 (1) (ht), the department shall pay $64,193,900 for aid payable for calendar years 2015 to 2019 and $65,477,800 for aid payable for calendar year years 2020 and 2021, $32,738,900 for calendar year 2022, and $65,477,800 for calendar year 2023 and thereafter, to the eligible applicant that pays the local contribution required under par. (b) 1. for an urban mass transit system that has annual operating expenses of $80,000,000 or more. If the eligible applicant that receives aid under this subd. 6. cm. is served by more than one urban mass transit system, the eligible applicant may allocate the aid between the urban mass transit systems in any manner the eligible applicant considers desirable.

58,325 Section 325. 85.20 (4m) (a) 6. d. of the statutes is amended to read:

85.20 (4m) (a) 6. d. From the appropriation under s. 20.395 (1) (hu), the department shall pay $16,868,000 for aid payable for calendar years 2015 to 2019 and $17,205,400 for aid payable for calendar year years 2020 and 2021, $8,602,700 for calendar year 2022, and $17,205,400 for calendar year 2023 and thereafter, to the eligible applicant that pays the local contribution required under par. (b) 1. for an urban mass transit system that has annual operating expenses in excess of $20,000,000 but less than $80,000,000. If the eligible applicant that receives aid under this subd. 6. d. is served by more than one urban mass transit system, the eligible applicant may allocate the aid between the urban mass transit systems in any manner the eligible applicant considers desirable.

58,326 Section 326. 85.64 of the statutes is created to read:

85.64 Office of innovative program delivery. (1) In this section:

(a) “Director” means the director of the office.

(b) “Office” means the office of innovative program delivery attached to the department under s. 15.463 (1).

(2) The secretary shall appoint a director who has no fewer than than 5 years of experience in design-build project development and delivery specific to public transportation or public infrastructure construction.

(3) The director shall do all of the following:

(a) Perform the duties and functions required under s. 84.062.

(b) Employ, supervise, and train personnel assigned to the office by the secretary.

(c) Supervise all expenditures of the office.

(4) The office shall perform the duties and functions required under s. 84.062.

58,327 Section 327. 86.30 (2) (a) 3. of the statutes is amended to read:

86.30 (2) (a) 3. For each mile of road or street under the jurisdiction of a municipality as determined under s. 86.302, the mileage aid payment shall be $2,389 in calendar year 2019 and $2,628 in calendar year years 2020 and 2021, $2,681 in calendar year 2022, and $2,734 in calendar year 2023 and thereafter.

58,328 Section 328 . 86.30 (2) (d) of the statutes is renumbered 86.30 (2) (d) 1. and amended to read:

86.30 (2) (d) 1. No municipality may be paid an amount under this section greater than 85 percent of its 3-year average costs, except as provided in subd. 2.

58,329 Section 329 . 86.30 (2) (d) 2. of the statutes is created to read:

86.30 (2) (d) 2. A town for which the equalized value of the town in the previous year was in the bottom quartile of equalized values of towns in the state for that year cannot be paid an amount under this section greater than 98 percent of its 3-year average costs. Equalized values under this subdivision shall be those determined by the department of revenue under s. 70.57.

58,330 Section 330. 86.30 (2m) of the statutes is created to read:

86.30 (2m) Adjustments for certain aid limitations. If the amount of transportation aids paid to a town is limited by sub. (2) (d) to an amount less than the amount calculated under sub. (2) (a) and the department determines that the limitation was caused by the timing of a reimbursement for an expenditure made by the town, the department shall make an additional payment of transportation aids to the town from the appropriation under s. 20.395 (1) (aw) in an amount that the department determines will compensate the town for the diminished payments. If the moneys appropriated under s. 20.395 (1) (aw) are not sufficient to fully compensate towns qualifying for payments under this subsection, the department may prorate the payments among the qualifying towns.

58,331 Section 331. 86.30 (9) (b) of the statutes is amended to read:

86.30 (9) (b) For the purpose of calculating and distributing aids under sub. (2), the amounts for aids to counties are $111,093,800 in calendar year 2019 and $122,203,200 in calendar year years 2020 and 2021, $124,647,300 in calendar year 2022, and $127,140,200 in calendar year 2023 and thereafter. These amounts, to the extent practicable, shall be used to determine the statewide county average cost-sharing percentage in the particular calendar year.

58,332 Section 332. 86.30 (9) (c) of the statutes is amended to read:

86.30 (9) (c) For the purpose of calculating and distributing aids under sub. (2), the amounts for aids to municipalities are $348,639,300 in calendar year 2019 and $383,503,200 in calendar year years 2020 and 2021, $391,173,300 in calendar year 2022, and $398,996,800 in calendar year 2023 and thereafter. These amounts, to the extent practicable, shall be used to determine the statewide municipal average cost-sharing percentage in the particular calendar year.