2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 792
March 23, 2010 - Offered by Representative Jorgensen.
AB792-ASA1,1,11 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),
325.18 (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),
5803.09 (1) and (2), 804.01 (2) (intro.), 805.04 (2m) and 893.981; and to create
616.42 (1) (h), 16.46 (10), 16.705 (1) (a) 3., (b) and (c), 16.705 (2) (a) 3., (b) and (c),
716.705 (4), 16.705 (5g), (5m) and (5r), 16.705 (6) (a), 16.705 (8) (am), 16.705 (9),
816.75 (1) (a) 4., 16.771, 16.871, 20.932, 66.0902, 84.01 (13m) and 85.65 of the
9statutes; 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:
AB792-ASA1, s. 1
1Section 1. 16.42 (1) (h) of the statutes is created to read:
AB792-ASA1,2,52 16.42 (1) (h) 1. The total amount of contracted positions, including the number
3of service hours and recurring service rate payments, providing services for the
4agency that are paid from the agency's base level funding and an identification of the
5appropriation or appropriations used to fund the contract expenditures.
AB792-ASA1,2,76 2. The total amount of agency base level funding used to pay for the contracted
7positions under subd. 1.
AB792-ASA1,2,108 3. The amount of funding requested for contracted positions identified under
9subd. 1 and an identification of the appropriation or appropriations that will be used
10to fund the contracted positions.
AB792-ASA1, s. 2 11Section 2. 16.46 (10) of the statutes is created to read:
AB792-ASA1,2,1512 16.46 (10) (a) A statement of the number of contracted positions providing
13services for each state agency that are paid from the agency's base level funding and
14an identification of the appropriation or appropriations used to fund the contracted
15positions.
AB792-ASA1,2,1716 (b) A statement of the total amount of each state agency's base level funding
17used to pay for the contracted positions.
AB792-ASA1,2,2018 (c) A statement of the amount of funding requested by state agencies for
19contracted positions and an identification of the appropriation or appropriations that
20will be used to fund the contracted positions.
AB792-ASA1, s. 3 21Section 3. 16.705 (1) of the statutes is renumbered 16.705 (1) (a) (intro.) and
22amended to read:
AB792-ASA1,2,2423 16.705 (1) (a) (intro.) The department or its agents may contract for services
24which if at least 2 of the following conditions apply:
AB792-ASA1,2,25 251. The services can be performed more economically or by contract.
AB792-ASA1,3,3
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
.
AB792-ASA1,3,5 4(d) The department shall, by rule, prescribe uniform procedures for
5determining whether services are appropriate for contracting under this subsection.
AB792-ASA1, s. 4 6Section 4. 16.705 (1) (a) 3., (b) and (c) of the statutes are created to read:
AB792-ASA1,3,87 16.705 (1) (a) 3. When considering timeliness of delivery, the services can be
8performed more efficiently by contract.
AB792-ASA1,3,119 (b) Notwithstanding par. (a), the department or its agents may contract for any
10services if the contract will be for a period that is not more than one year and if the
11contract is not eligible for renewal.
AB792-ASA1,3,1212 (c) No contract under this section may be automatically renewed.
AB792-ASA1, s. 5 13Section 5. 16.705 (2) of the statutes is renumbered 16.705 (2) (a) (intro.) and
14amended to read:
AB792-ASA1,3,1715 16.705 (2) (a) (intro.) The department shall promulgate rules for the
16procurement of contractual services by the department and its designated agents,
17including but not limited to rules the following:
AB792-ASA1,3,19 181. Rules prescribing approval and monitoring processes for contractual service
19contracts.
AB792-ASA1,4,9 202. Except as provided in par. (b), a requirement for agencies to conduct a
21uniform cost-benefit analysis of each proposed contractual service procurement
22involving an estimated expenditure of more than $25,000 $50,000 in accordance with
23standards prescribed in the rules, and, except as provided in par. (b), a requirement
24for agencies to review periodically, and before any renewal, the continued
25appropriateness of contracting under each contractual services agreement involving

1an 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
9incidental costs
.
AB792-ASA1,4,18 10(d) Each officer requesting approval to engage any person to perform
11contractual services shall submit to the department written justification for such
12contracting which shall include a description of the contractual services to be
13procured, justification of need, justification for not contracting with other agencies,
14a specific description of the scope of contractual services to be performed, and
15justification for the procurement process if a process other than competitive bidding
16is to be used. The department may not approve any contract for contractual services
17unless it is satisfied that the justification for contracting conforms to the
18requirements of this section and ss. 16.71 to 16.77.
AB792-ASA1, s. 6 19Section 6. 16.705 (2) (a) 3., (b) and (c) of the statutes are created to read:
AB792-ASA1,4,2320 16.705 (2) (a) 3. A requirement that each agency that contracts for services
21under this section perform periodic audits on cost-benefit analyses or continued
22appropriateness reviews and contracts that required a cost-benefit analysis or
23continued appropriateness review.
AB792-ASA1,4,2524 (b) 1. A cost-benefit analysis or continued appropriateness review is not
25required for the following services:
AB792-ASA1,4,26
1a. Services that federal or state law requires to be performed by contract.
AB792-ASA1,5,22 b. Services that are incidental to the purchase of a commodity.
AB792-ASA1,5,53 c. Services that are substantially dissimilar to services performed by state
4employees or that state employees have not performed historically and are not able
5to perform without significant retraining or investment in infrastructure or capital.
AB792-ASA1,5,86 d. Services that must be provided per a contract, license, or warranty by the
7original equipment manufacturer or publisher unless the contract, license, or
8warranty has expired or is no longer valid.
AB792-ASA1,5,129 2. If an agency is exempted from the cost-benefit analysis or continued
10appropriateness review under subd. 1. c. only, the department must include in the
11report submitted under sub. (8) the services that the agency determined were exempt
12under subd. 1. c.
AB792-ASA1,5,1413 (c) 1. Neither a cost-benefit analysis nor a continued appropriateness review
14may be conducted by contract.
AB792-ASA1,5,1615 2. A cost-benefit analysis may not be shown to a bidder prior to the issuance
16of a letter of intent to contract.
AB792-ASA1, s. 7 17Section 7. 16.705 (4) of the statutes is created to read:
AB792-ASA1,6,218 16.705 (4) Any person submitting a bid or proposal or a labor organization that
19is certified under subch. V of ch. 111 to be the representative of the appropriate
20collective bargaining unit that is aggrieved by a solicitation for bids or by a letter of
21intent to contract may protest to the agency that solicited or awarded the contractual
22services. The protesting party shall file a written notice of intent to protest with, or
23send an electronic notice of intent to protest to, the agency that solicited or awarded
24the contractual services within 7 working days after the solicitation or the letter,
25whichever is appropriate, and shall serve a written or send an electronic protest

1within 12 working days after issuance of the solicitation or the letter, whichever is
2appropriate.
AB792-ASA1, s. 8 3Section 8. 16.705 (5g), (5m) and (5r) of the statutes are created to read:
AB792-ASA1,6,64 16.705 (5g) All contracts for contractual services must provide notice of the
5rules promulgated by the division of legal services under sub. (5m) (a) and of the
6requirements under sub. (5r).
AB792-ASA1,6,8 7(5m) The division of legal services shall promulgate rules on all of the
8following:
AB792-ASA1,6,129 (a) Actions by the person performing the contractual services that would result
10in the agency for which contractual services are performed recovering any
11expenditures for those contractual services that the agency paid to the person
12performing the contractual services.
AB792-ASA1,6,1413 (b) Standard performance measures, including quantifiable benchmark
14indicators, to evaluate persons performing contractual services.
AB792-ASA1,6,1615 (c) Signing bonuses, reimbursements, and per diem costs included in all
16contracts for contractual services.
AB792-ASA1,6,22 17(5r) (a) 1. If the cost of the contractual services exceeds $25,000, any
18expenditures of the person performing the contractual services that exceed its
19original bid by 10 percent or more may not be paid unless the agency for which the
20contractual services are performed notifies the governor and the joint committee on
21finance the amount by which the cost exceeds the original bid and the reason for the
22increase.
AB792-ASA1,7,223 2. Subdivision 1. does not apply to contractual services purchased for the
24University of Wisconsin System, or for any University of Wisconsin System campus
25or institution, if the contractual services are for research or instructional purposes,

1as determined by the University of Wisconsin System or the campus or institution,
2whichever is appropriate.
AB792-ASA1,7,83 (b) No person performing contractual services under this section may provide
4any salary increase if the salary increase would result in greater expenditures for the
5agency for which the contractual services are performed than the amounts specified
6in the original bid. This restriction under this paragraph on salary increases does
7not apply if the salary increase is in accordance with the terms of a collective
8bargaining agreement.
AB792-ASA1, s. 9 9Section 9. 16.705 (6) of the statutes is renumbered 16.705 (6) (b) and amended
10to read:
AB792-ASA1,7,1811 16.705 (6) (b) If the agency for which contractual services are performed under
12a contractual services agreement concludes under par. (a) that the performance was
13unsatisfactory, recovers expenditures because the contractor's actions were listed in
14the rules developed under sub. (5m) (a), or concludes
that the performance was
15unsatisfactory based on factors the agency considers, the agency shall file with the
16department an evaluation of stating that the contractor's performance was
17unsatisfactory
within 60 days after the fulfillment of the agreement. The evaluation
18shall be in such form as the secretary may require.
AB792-ASA1, s. 10 19Section 10. 16.705 (6) (a) of the statutes is created to read:
AB792-ASA1,7,2320 16.705 (6) (a) An agency for which contractual services are performed under
21a contractual services agreement shall evaluate the contractual services using the
22standard performance measures and benchmark indicators created under sub. (5m)
23(b). No contract may be renewed until the agency completes the evaluation.
AB792-ASA1, s. 11 24Section 11. 16.705 (7) of the statutes is amended to read:
AB792-ASA1,8,4
116.705 (7) The department shall review evaluations submitted under sub. (6)
2(b) and promulgate rules prescribing procedures to assure that future contracts for
3contractual services are not awarded to contractors whose past performance is found
4to be unsatisfactory, to the extent feasible.
AB792-ASA1, s. 12 5Section 12. 16.705 (8) (a) of the statutes is amended to read:
AB792-ASA1,8,76 16.705 (8) (a) A summary of the cost-benefit analyses completed by agencies
7in compliance with rules promulgated by the department under sub. (2) (a).
AB792-ASA1, s. 13 8Section 13. 16.705 (8) (am) of the statutes is created to read:
AB792-ASA1,8,119 16.705 (8) (am) As provided under sub. (2) (b) 2., any services on which agencies
10would have had to perform a cost-benefit analysis or a continued appropriateness
11review but for the exemption under sub. (2) (b) 1. c.
AB792-ASA1, s. 14 12Section 14. 16.705 (9) of the statutes is created to read:
AB792-ASA1,8,1513 16.705 (9) (a) In this subsection, "federal economic stimulus funds" means
14federal moneys received by the state, pursuant to federal legislation enacted during
15the 111th Congress for the purpose of reviving the economy of the United States.
AB792-ASA1,8,2216 (b) Except as provided in pars. (c) and (d), if in any fiscal year an agency in the
17executive branch is prohibited from hiring employees to fill vacant positions or its
18employees are required to serve an unpaid leave of absence, the agency may not enter
19into, renew, or extend any contractual services contracts with private contractors or
20consultants for the remainder of that fiscal year for the performance of services of
21agency employees who would have performed the services had they been hired or had
22they not have been required to take an unpaid leave of absence.
AB792-ASA1,9,423 (c) Paragraph (b) shall not apply to contractual services contracts that are
24funded with federal economic stimulus funds and the secretary determines that any
25deadlines imposed by the federal government on the expenditure of the federal

1economic stimulus funds cannot be met without an agency's entering into, renewing,
2or extending a contractual services contract or a cost-benefit analysis is conducted
3that demonstrates that a contractual services contract would be more cost effective
4and efficient than having state employees perform the services.
AB792-ASA1,9,65 (cm) Paragraph (b) shall not apply to contracts entered into, renewed, or
6extended under s. 977.08.
AB792-ASA1,9,157 (d) An agency in the executive branch may submit a written request to the joint
8committee on finance to have par. (b) not apply to the agency with respect to a specific
9contractual services contract. If the cochairpersons of the committee do not notify
10the agency within 14 working days after the date of the agency's submittal that the
11committee intends to schedule a meeting to review the request, approval of the
12request is granted. If, within 14 working days after the date of the agency's request
13submittal, the cochairpersons of the committee notify the agency that the committee
14intends to schedule a meeting to review the request, the request may be granted only
15as approved by the committee.
AB792-ASA1, s. 15 16Section 15. 16.75 (1) (a) 4. of the statutes is created to read:
AB792-ASA1,9,1917 16.75 (1) (a) 4. The contracting agency shall electronically send the successful
18bidder a letter of intent to contract and shall send electronic copies of the letter to all
19other bidders.
AB792-ASA1, s. 16 20Section 16. 16.75 (1) (b) of the statutes is amended to read:
AB792-ASA1,9,2621 16.75 (1) (b) When the estimated cost exceeds $25,000, the department shall
22invite bids to be submitted. The department either shall either solicit sealed bids to
23be opened publicly at a specified date and time, or shall solicit bidding by auction to
24be conducted electronically at a specified date and time. Whenever bids are invited,
25due notice inviting bids shall may be published as a class 2 notice, under ch. 985 or,

1and notice inviting bids, including a copy of all documents soliciting bids, shall be

2posted on the Internet at a site determined or approved by the department. The bid
3opening or auction shall occur at least 7 days after the date of the last insertion of
4the notice or
at least 7 days after the date of posting on the Internet. The notice under
5ch. 985, if applicable, and the Internet site
shall specify whether sealed bids are
6invited or bids will be accepted by auction, and shall give a clear description of the
7materials, supplies, equipment, or contractual services to be purchased, the amount
8of any bond, share draft, check, or other draft to be submitted as surety with the bid
9or prior to the auction, and the date and time that the public opening or the auction
10will be held.
AB792-ASA1, s. 17 11Section 17. 16.75 (2m) (b) of the statutes is amended to read:
AB792-ASA1,10,2112 16.75 (2m) (b) When the estimated cost exceeds $25,000, the department may
13invite competitive sealed proposals by publishing a class 2 notice under ch. 985 or by
14posting
and shall post notice, including all documents soliciting proposals, on the
15Internet at a site determined or approved by the department. The notice under ch.
16985, if applicable, and the notice on the Internet site
shall describe the materials,
17supplies, equipment, or contractual services to be purchased, the intent to make the
18procurement by solicitation of proposals rather than by solicitation of bids, any
19requirement for surety, and the date the proposals will be opened, which shall be at
20least 7 days after the date of the last insertion of the notice or
at least 7 days after
21the date of posting on the Internet.
AB792-ASA1, s. 18 22Section 18. 16.75 (6) (c) of the statutes is amended to read:
AB792-ASA1,11,1023 16.75 (6) (c) If the secretary determines that it is in the best interest of this state
24to do so, he or she may, with the approval of the governor, waive the requirements
25of subs. (1) to (5) and may purchase supplies, material, equipment, or contractual

1services, other than printing and stationery, from a private source other than a
2source specified in par. (b). Except as provided in sub. (2g) (c), if the cost of the
3purchase is expected to exceed $25,000, the department shall may first publish a
4class 2 notice under ch. 985 or and shall post a notice on the Internet at the site
5determined or approved by the department under sub. (1) (b) describing the
6materials, supplies, equipment, or contractual services to be purchased, stating the
7intent to make the purchase from a private source without soliciting bids or
8competitive sealed proposals and stating the date on which the contract or purchase
9order will be awarded. The date of the award shall be at least 7 days after the date
10of the last insertion or
the date of posting on the Internet.
AB792-ASA1, s. 19 11Section 19. 16.771 of the statutes is created to read:
AB792-ASA1,11,12 1216.771 False claims. (1) In this section, "contract" means only the following:
AB792-ASA1,11,1313 (a) Contracts or orders that are subject to s. 16.705.
AB792-ASA1,11,1614 (b) Contracts or orders entered into for projects that are subject to s. 66.0903,
15103.49, or 103.50 if the party presenting the false claim is alleged to have failed to
16comply with s. 66.0903, 103.49, or 103.50.
AB792-ASA1,11,23 17(2) Whoever knowingly presents or causes to be presented a false claim for
18payment under a contract for materials, supplies, equipment, or services to be
19provided to an agency shall forfeit not less than $5,000 nor more than $10,000, plus
203 times the amount of the damages that were sustained by the state or would have
21been sustained by the state, whichever is greater, as a result of the false claim. The
22attorney general may bring an action on behalf of the state to recover any forfeiture
23incurred under this section.
AB792-ASA1, s. 20 24Section 20. 16.87 (2) of the statutes is renumbered 16.87 (2) (a) and amended
25to read:
AB792-ASA1,12,6
116.87 (2) (a) A contract for engineering services or architectural services or a
2to be done for or furnished to the state or a department, board, commission, or officer
3of the state is exempt from the requirements of ss. 16.75 and 16.705, but an engineer
4or an architect employed at the department shall determine if the project could be
5completed more effectively and efficiently with state employees before a contract
6may be approved under sub. (3).
AB792-ASA1,12,10 7(b) A contract involving an expenditure of $10,000 or more for construction
8work, or $30,000 or more for limited trades work, to be done for or furnished to the
9state or a department, board, commission, or officer of the state is exempt from the
10requirements of ss. 16.705 and 16.75.
AB792-ASA1,12,13 11(c) The department shall attempt to ensure that 5% of the total amount
12expended under this section in each fiscal year is paid to minority businesses, as
13defined under s. 16.75 (3m) (a).
AB792-ASA1, s. 21 14Section 21. 16.871 of the statutes is created to read:
AB792-ASA1,12,15 1516.871 False claims. (1) In this section:
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