Amendment ASA1-AB40

AB40-ASA1,134 Section 134. 16.848 (4) (b) 2. of the statutes is repealed.

AB40-ASA1,135 Section 135. 16.848 (4) (b) 3. of the statutes is amended to read:

AB40-ASA1,57,5 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.

AB40-ASA1,136 Section 136. 16.848 (4) (b) 5. of the statutes is amended to read:

AB40-ASA1,57,8 16.848 (4) (b) 5. The costs of maintaining federal tax law compliance in the selection of general obligation debt to be redeemed.

AB40-ASA1,137 Section 137. 16.848 (4) (c) of the statutes is created to read:

AB40-ASA1,58,5 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.

AB40-ASA1,138 Section 138. 16.849 of the statutes is created to read:

AB40-ASA1,58,10 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.

AB40-ASA1,138m Section 138m. 16.85 (2) of the statutes is amended to read:

AB40-ASA1,58,21 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.

AB40-ASA1,139 Section 139. 16.855 (1) of the statutes is renumbered 16.855 (1m) and amended to read:

AB40-ASA1,59,4 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.

AB40-ASA1,59,12 (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.

AB40-ASA1,140 Section 140. 16.855 (1g) of the statutes is created to read:

AB40-ASA1,59,14 16.855 (1g) In this section:

AB40-ASA1,59,17 (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.

AB40-ASA1,59,19 (b) "Qualified bidder" means a person that the department certifies under sub. (9m) (b) 1.

AB40-ASA1,59,21 (c) "Qualified responsible bidder" means a person who is a qualified bidder and who is a responsible bidder.

AB40-ASA1,59,23 (d) "Responsible bidder" means a person that the department certifies under sub. (9m) (b) 2.

AB40-ASA1,60,2 (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.

AB40-ASA1,141 Section 141. 16.855 (2) (a) 5. of the statutes is amended to read:

AB40-ASA1,60,4 16.855 (2) (a) 5. Date, when and place where plans will be available.

AB40-ASA1,142 Section 142. 16.855 (2) (a) 6. of the statutes is created to read:

AB40-ASA1,60,7 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.

AB40-ASA1,143 Section 143. 16.855 (9) of the statutes is renumbered 16.855 (9m) (b) 1. c. and amended to read:

AB40-ASA1,60,14 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.

AB40-ASA1,144 Section 144 . 16.855 (9m) of the statutes is created to read:

AB40-ASA1,60,16 16.855 (9m) (ag) In this subsection, "bidder" includes a potential bidder.

AB40-ASA1,60,25 (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.

AB40-ASA1,61,3 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.

AB40-ASA1,61,9 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.

AB40-ASA1,61,11 (b) 1. To be certified as a qualified bidder, a bidder must meet all of the following conditions:

AB40-ASA1,61,16 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.

AB40-ASA1,61,19 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.

AB40-ASA1,61,21 2. To be certified as a responsible bidder, a bidder must meet all of the following conditions:

AB40-ASA1,61,22 a. The bidder maintains a permanent place of business.

AB40-ASA1,62,2 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.

AB40-ASA1,62,4 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.

AB40-ASA1,62,12 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.

AB40-ASA1,62,15 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.

AB40-ASA1,62,16 f. The bidder has been in business for at least 12 months.

AB40-ASA1,62,17 g. The bidder is a legal entity and authorized to do business in Wisconsin.

AB40-ASA1,62,19 h. The bidder has performed at least one other public project for a government entity.

AB40-ASA1,62,21 i. The bidder can provide information, upon request, to the department on the bidder's ownership, management, and control.

AB40-ASA1,62,24 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.

AB40-ASA1,63,2 k. In any jurisdiction, in the previous 10 years, the bidder has not been disciplined under a professional license.

AB40-ASA1,63,5 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.

AB40-ASA1,145 Section 145. 16.855 (10m) (am) 3. of the statutes is amended to read:

AB40-ASA1,63,11 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.

AB40-ASA1,146 Section 146. 16.855 (13) of the statutes is repealed and recreated to read:

AB40-ASA1,63,17 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.

AB40-ASA1,63,22 2. In any project under this section that is let under s. 13.48 (19), 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. The contractor awarded a contract under s. 13.48 (19) shall contract with the mechanical, electrical, or plumbing subcontractors so identified.

AB40-ASA1,64,8 (b) For purposes of identifying subcontractors under par. (a), the department shall develop and administer an open and public bidding process and follow the requirements and procedures under sub. (2). Within 48 hours of the deadline for a mechanical, electrical, or plumbing contractor to submit a bid, the department shall post on the department Internet site the names of the bidders and the amount of each bid. No more than 5 days after the deadline, the department shall post on its Internet site and provide public notice of the lowest bidders who are qualified responsible bidders. The department shall post on its Internet site the bids, including the bid documents, identified under this paragraph as the lowest bids and they shall be open to public inspection under s. 19.35 (1). No other bids under this paragraph may be on the Internet site or open to public inspection.

AB40-ASA1,147 Section 147. 16.855 (14) (a) of the statutes is renumbered 16.855 (14) (d) and amended to read:

AB40-ASA1,64,21 16.855 (14) (d) If a project requires prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department shall take both single bids and separate bids on any division of the work that it designates. If a project does not require prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department may take single bids or separate bids on any division of the work that it designates. If the department awards contracts by the division of work, the department shall award the contracts according to the division of work selected for bidding. Except as provided in sub. (10m) (am), the department shall award all single prime contracts to the lowest bidder who is a qualified responsible bidder or bidders that result results in the lowest total construction cost for the project.

AB40-ASA1,148 Section 148. 16.855 (14) (am) of the statutes is created to read:

AB40-ASA1,65,2 16.855 (14) (am) Except as provided in s. 13.48 (19), the department shall let all construction projects that exceed $185,000 through single prime contracting. The department may not request or accept any alternate bids when letting a construction project through single prime contracting.

AB40-ASA1,149 Section 149. 16.855 (14) (b) of the statutes is renumbered 16.855 (14) (b) 1. and amended to read:

AB40-ASA1,65,9 16.855 (14) (b) 1. The state is not liable to a prime contractor for damage from delay caused by another prime contractor if the department takes reasonable action to require the delaying prime contractor to comply with its contract. If the state is not liable under this paragraph subdivision, the delayed prime contractor may bring an action for damages against the delaying prime contractor.

AB40-ASA1,149b Section 149b. 16.855 (14) (b) 2. of the statutes is created to read:

AB40-ASA1,65,13 16.855 (14) (b) 2. The state is not liable for any damages to a subcontractor identified under sub. (13) (a) that enters into a contract with a general prime contractor under par. (e).

AB40-ASA1,150 Section 150 . 16.855 (14) (bm) of the statutes is created to read:

AB40-ASA1,65,23 16.855 (14) (bm) If the bid is being let through single prime contracting, bidders for the general prime contractor who are responsible qualified bidders shall submit their bids to the department no later than 5 days after the successful subcontractor bids become available to the public under sub. (13) (b). Within 48 hours of the deadline for a general prime contractor to submit a bid, the department shall post on the department's Internet site the tabulations of all bids that identify the names of the general prime contractors that bid and the amount of each bid and shall make the tabulations and amounts available at the department if they are unavailable on the department's Internet site.

AB40-ASA1,151 Section 151 . 16.855 (14) (c) of the statutes is created to read:

AB40-ASA1,66,5 16.855 (14) (c) The department shall reject any bid for the general prime contractor from a bidder who submits a bid that includes contractors other than the ones identified under sub. (13) (a). The award of a contract may not be finalized until the department approves the required performance bond and certificate of insurance.

AB40-ASA1,152 Section 152. 16.855 (14) (e) of the statutes is created to read:

AB40-ASA1,66,17 16.855 (14) (e) Within 30 days after the deadline under par. (bm) for bidders for the general prime contractor to submit their bids, the department shall notify the general prime contractor bidder that was awarded the contract under par. (d). The contractor who is awarded the contract shall enter into contracts with the mechanical, electrical, or plumbing subcontractors identified under par. (13) (a), shall ensure that any contract meets the requirements under sub. (14m) (a) and (b), and shall comply with the requirements under sub. (14m) (c) and (d). The department shall make the final bid results available on its Internet site at the time it provides the written, official notice to the successful general prime contractor bidder notifying the contractor that the contract is fully executed and that the contractor is authorized to begin work on the project.

AB40-ASA1,153 Section 153 . 16.855 (14m) of the statutes is created to read:

AB40-ASA1,66,20 16.855 (14m) (a) Any contract entered into between a general prime contractor and a subcontractor under sub. (14) (e) must contain all of the following clauses:

AB40-ASA1,67,2 Prompt Payment. (General prime contractor) shall pay (mechanical, electrical, or plumbing subcontractor) in accordance with section 16.855 (19) (b), Wisconsin stats., for work that has been satisfactorily completed and properly invoiced by (mechanical, electrical, or plumbing subcontractor). A payment is timely if it is mailed, delivered, or transferred to (mechanical, electrical, or plumbing subcontractor) by the deadline under section 16.855 (19) (b), Wisconsin stats.

AB40-ASA1,67,8 If (mechanical, electrical, or plumbing subcontractor) is not paid by the deadline in this contract, (general prime contractor) shall pay interest on the balance due from the eighth day after the (general prime contractor) receives payment from the Department of Administration for the work for which payment is due and owing to (mechanical, electrical, or plumbing subcontractor), at the rate specified in section 71.82, Wisconsin stats., compounded monthly.

AB40-ASA1,67,13 A (mechanical, electrical, or plumbing subcontractor) that receives payment as provided under this contract and that subcontracts with another entity shall pay those subcontractors, and be liable for interest on late payments to those subcontractors, in the same manner as (general prime contractor) is required to pay (mechanical, electrical, or plumbing subcontractor) under this contract.

AB40-ASA1,67,18 Insurance and Bonds. (Mechanical, electrical, or plumbing subcontractor) shall not commence work under this contract until it has obtained all necessary insurance required of (mechanical, electrical, or plumbing subcontractor) in the contract between the (general prime contractor) and the Department of Administration.

AB40-ASA1,67,23 (Mechanical, electrical, or plumbing subcontractor) shall provide a separate 100 percent performance bond and a separate 100 percent payment bond to the benefit of the (general prime contractor) as the sole named obligee. Original bonds shall be given to the (general prime contractor) and a copy shall be given to the Department of Administration no later than 10 days after execution of this contract.

AB40-ASA1,68,18 Indemnification. To the fullest extent permitted by law, (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others whom (general prime contractor) is required to indemnify under its contract with the department, and the employees of any of them, from and against claims, damages, fines, penalties, losses, and expenses, including but not limited to attorney fees, arising in any way out of or resulting from the performance of the work under this contract, but only to the extent such claim, damage, fine, penalty, loss, or expense: (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of property, including but not limited to loss of use resulting therefrom and is caused by the negligence, or acts or omissions, of (mechanical, electrical, or plumbing subcontractor), its subcontractors, any of their employees, and anyone directly or indirectly employed by them or anyone for whose acts they may be liable, or (2) as related to such claims, damages, fines, penalties, losses, and expense of or against (general prime contractor), results from or arises out of the negligence of (general prime contractor) or other fault in providing general supervision or oversight of the work of (mechanical, electrical, or plumbing subcontractor) or (3) as related to claims, damages, fines, penalties, losses, and expense against the Department of Administration, arises out of the department's status as owner of the project or project site.

AB40-ASA1,69,17 In addition (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others (general prime contractor) is required to indemnify under its contract with the department, and the employees of any of them, from any liability, including liability resulting from a violation of any applicable safe place act, that (general prime contractor) or the state incurs to any employee of (mechanical, electrical, or plumbing subcontractor) or any third party where the liability arises from a derivative claim from said employee, when the liability arises out of the failure of the (general prime contractor) or the state to properly supervise, inspect, or approve the work or work area of (mechanical, electrical, or plumbing subcontractor), but only to the extent that the liability arises out of the acts or omissions of (mechanical, electrical, or plumbing subcontractor), its employees, or anyone for whom (mechanical, electrical, or plumbing subcontractor) may be liable, or from (mechanical, electrical, or plumbing subcontractor's) breach of its contractual responsibilities or arises out of (general prime contractor's) negligence or other fault in providing general supervision or oversight of (mechanical, electrical, or plumbing subcontractor's) work or arises out of the Department of Administration's status as owner of the project or project site. In claims against (general prime contractor) or the state by an employee of (mechanical, electrical, or plumbing subcontractor) or its subcontractors or anyone for whose acts (mechanical, electrical, or plumbing subcontractor) may be liable, the indemnification obligation of this paragraph is not limited by a limitation on amount or type of damage, compensation, or other benefits payable by or for the (mechanical, electrical, or plumbing subcontractor) or its subcontractors under workers' compensation act.

AB40-ASA1,69,25 Except as identified above, the obligations of (mechanical, electrical, or plumbing subcontractor) under this indemnification do not extend to the liability of (general prime contractor) and its agents or employees arising out of (1) preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs, or specifications; (2) the giving of or failure to give directions or instructions by the (general prime contractor) or the Department of Administration or their agents or employees provided the giving or failure to give is the cause of the injury or damage; or (3) the acts or omissions of other subcontractors.

AB40-ASA1,70,3 Retainage. Retainage shall occur and be in amounts and on a schedule equal to that in the contract between (general prime contractor) and the Department of Administration.

AB40-ASA1,70,7 (b) A contract entered into under sub. (14) (e) between a general prime contractor and a mechanical, electrical, or plumbing subcontractor must include a scope of work clause that is identical to the scope of work clause on which the mechanical, electrical, or plumbing subcontractor bid under sub. (13).

AB40-ASA1,70,12 (c) 1. Except as provided in subd. 2., a general prime contractor and a mechanical, electrical, or plumbing subcontractor may not enter any agreement other than the contract entered into under sub. (14) (e) if the agreement is in connection with bids submitted under sub. (13) or (14) that would alter or affect the scope or price of the contract entered into under sub. (13) or (14) (e).

AB40-ASA1,70,15 2. The prohibition under subd. 1. does not apply to change orders by the department that result in changes to the plans or specifications or to back charges allowed by the contract under sub. (13).

AB40-ASA1,70,18 (d) The general prime contractor shall base its project schedule on the schedule in the specifications or bid instructions under sub. (2) (a) unless otherwise agreed to by the mechanical, electrical, or plumbing subcontractor.

AB40-ASA1,154 Section 154. 16.855 (19) of the statutes is renumbered 16.855 (19) (a) and amended to read:

AB40-ASA1,71,12 16.855 (19) (a) As the work progresses under any contract for construction of a project the department, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work done properly completed, which shall entitle the contractor to receive the amount thereof, less the retainage, from the proper fund. The retainage shall be an amount equal to not more than 5% of the estimate until 50% of the work has been completed. At 50% completion, no additional amounts shall be retained, and partial payments shall be made in full to the contractor unless the architect or engineer department certifies that the job is not proceeding satisfactorily. At 50% completion or any time thereafter when the progress of the work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10% of the value of the work completed. Upon substantial completion of the work, an any amount retained may shall be paid to the contractor, less the value of any required corrective work or uncompleted work. For the purposes of this section, estimates may include any fabricated or manufactured materials and components specified, previously paid for by contractor and delivered to the work or properly stored and suitable for incorporation in the work embraced in the contract.

AB40-ASA1,71,13 (c) This subsection does not apply to contracts awarded under s. 16.858.

AB40-ASA1,155 Section 155. 16.855 (19) (b) of the statutes is created to read:

AB40-ASA1,72,6 16.855 (19) (b) As the work progresses under any subcontract under sub. (14) (e) for construction of a project, the general prime contractor shall, upon request of a subcontractor, pay to the subcontractor an amount equal to the proportionate value of the subcontractor's work properly completed, less retainage. The retainage shall be an amount equal to not more than 5 percent of the subcontractor's work completed until 50 percent of the subcontractor's work has been completed. At 50 percent completion, no additional amounts may be retained, and partial payments shall be made in full to the subcontractor unless the department certifies that the subcontractor's work is not proceeding satisfactorily. At 50 percent completion or any time thereafter when the progress of the subcontractor's work is not satisfactory, additional amounts may be retained but the total retainage may not be more than 10 percent of the value of the work completed. Upon substantial completion of the subcontractor's work, any amount retained shall be paid to the subcontractor, less the value of any required corrective work or uncompleted work. All payments the general prime contractor makes under this paragraph shall be within 7 calendar days after the date on which the general prime contractor receives payment from the department.

AB40-ASA1,155d Section 155d. 16.865 (8) of the statutes is amended to read: