AB768: Bill Text

AB768,276,24 779.14 (1m) (title) Payment and performance assurance requirements.

AB768, s. 613 Section 613. 779.14 (1m) (a) of the statutes, as affected by 1997 Wisconsin Acts 27 and 39, is renumbered 779.14 (1e) (a) and amended to read:

AB768,277,12 779.14 (1e) (a) All contracts with the state involving $2,500 or more and all other contracts involving $500 $10,000 or more for the performance of labor or furnishing materials when the same pertains to any public improvement or public work shall contain a provision for the payment by the prime contractor of all claims for labor performed and materials furnished, used or consumed in making the public improvement or performing the public work, including, without limitation because of enumeration, fuel, lumber, building materials, machinery, vehicles, tractors, equipment, fixtures, apparatus, tools, appliances, supplies, electric energy, gasoline, motor oil, lubricating oil, greases, state imposed taxes, premiums for worker's compensation insurance and contributions for unemployment insurance.

AB768, s. 614 Section 614. 779.14 (1m) (b) 1. of the statutes, as affected by 1997 Wisconsin Act 27, is repealed.

AB768, s. 615 Section 615. 779.14 (1m) (b) 1m. of the statutes, as created by 1997 Wisconsin Act 27, is renumbered 779.14 (1m) (f) and amended to read:

AB768,277,19 779.14 (1m) (f) (title) Direct purchase contracts. The bonding requirement under subd. 1. does Paragraphs (c) and (d) do not apply to a contract for the direct purchase of materials by the state or by a local unit of government.

AB768, s. 616 Section 616. 779.14 (1m) (b) 2. of the statutes is renumbered 779.14 (1m) (e) 2., and 779.14 (1m) (e) 2. (intro.) and b., as renumbered, are amended to read:

AB768,277,24 779.14 (1m) (e) 2. (intro.) The A bond required under par. (c) or (d) shall carry a penalty of not less than the contract price, and shall be conditioned for all of the following:

AB768,278,4 b. The payment to every person, including every subcontractor or supplier, of all claims that are entitled to payment for labor performed and materials furnished for the purpose of making the public improvement or performing the public work as provided in the contract and this subsection sub. (1e) (a).

AB768, s. 617 Section 617. 779.14 (1m) (b) 3. of the statutes is renumbered 779.14 (1m) (e) 3. and amended to read:

AB768,278,12 779.14 (1m) (e) 3. The A bond required under par. (c) shall be approved for the state by the state official authorized to enter the contract,. A bond required under par. (d) shall be approved for a county by its corporation counsel, for a city by its mayor, for a village by its president, for a town by its chairperson, for a school district by its president and for any other public board or body by the presiding officer thereof.

AB768, s. 618 Section 618. 779.14 (1m) (b) 4. of the statutes is renumbered 779.14 (1m) (e) 4. and amended to read:

AB768,278,17 779.14 (1m) (e) 4. No assignment, modification or change of the contract, change in the work covered thereby or extension of time for the completion of the contract may release the sureties on the a bond required under par. (c) or (d).

AB768, s. 619 Section 619. 779.14 (1m) (b) 5. of the statutes is renumbered 779.14 (1m) (e) 5. and amended to read:

AB768,278,23 779.14 (1m) (e) 5. Neither the invitation for bids nor the person having power to approve the prime contractor's bond may require that the a bond required under par. (c) or (d) be furnished by a specified surety company or through a specified agent or broker.

AB768, s. 620 Section 620. 779.14 (1m) (c) and (d) of the statutes are created to read:

AB768,279,3 779.14 (1m) (c) State contracts. The following requirements apply to contracts with the state for the performance of labor or furnishing materials for a public improvement or public work:

AB768,279,5 1. In the case of a contract with a contract price exceeding $10,000, as indexed under sub. (1s), but not exceeding $100,000, as indexed under sub. (1s):

AB768,279,8 a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors.

AB768,279,13 b. The contract shall comply with written standards established by the department of administration. Written standards established under this subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.

AB768,279,15 2. In the case of a contract with a contract price exceeding $100,000, as indexed under sub. (1s), but not exceeding $250,000, as indexed under sub. (1s):

AB768,279,18 a. The contract shall include a provision which allows the state to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors.

AB768,280,6 b. The contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of par. (e), unless the department of administration allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The department of administration may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only after the contract has been awarded and only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit, an escrow account or other type of instrument acceptable to the department of administration. The department of administration shall establish written standards under this subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under par. (e).

AB768,280,9 3. In the case of a contract with a contract price exceeding $250,000, as indexed under sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under par. (e).

AB768,280,12 (d) Local government contracts. The following requirements apply to contracts, other than contracts with the state, for the performance of labor or furnishing materials for a public improvement or public work:

AB768,280,14 1. In the case of a contract with a contract price exceeding $10,000, as indexed under sub. (1s), but not exceeding $50,000, as indexed under sub. (1s):

AB768,280,18 a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors.

AB768,280,23 b. The contract shall comply with written standards established by the public body authorized to enter into the contract. Written standards established under this subd. 1. b. shall include criteria for determining whether the contract requires payment or performance assurances and, if so, what payment or performance assurances are required.

AB768,280,25 2. In the case of a contract with a contract price exceeding $50,000, as indexed under sub. (1s), but not exceeding $100,000, as indexed under sub. (1s):

AB768,281,4 a. The contract shall include a provision which allows the governmental body that is authorized to enter into the contract to make direct payment to subcontractors or to pay the prime contractor with checks that are made payable to the prime contractor and to one or more subcontractors.

AB768,281,17 b. The contract shall require the prime contractor to provide a payment and performance bond meeting the requirements of par. (e), unless the public body authorized to enter into the contract allows the prime contractor to substitute a different payment assurance for the payment and performance bond. The public body may allow a prime contractor to substitute a different payment and performance assurance for the payment and performance bond only after the contract has been awarded and only if the substituted payment and performance assurance is for an amount at least equal to the contract price and is in the form of a bond, an irrevocable letter of credit, an escrow account or other type of instrument acceptable to the department of administration. The public body shall establish written standards under this subd. 2. b. governing when a different payment and performance assurance may be substituted for a payment and performance bond under par. (e).

AB768,281,20 3. In the case of a contract with a contract price exceeding $100,000, as indexed under sub. (1s), the contract shall require the prime contractor to obtain a payment and performance bond meeting the requirements under par. (e).

AB768, s. 621 Section 621. 779.14 (1m) (e) (title) of the statutes is created to read:

AB768,281,22 779.14 (1m) (e) Bonding requirements.

AB768, s. 622 Section 622. 779.14 (1s) of the statutes is created to read:

AB768,282,5 779.14 (1s) Indexing of contract thresholds. If a dollar amount is to be indexed under this subsection, the department of workforce development shall adjust the dollar amount biennially, the first adjustment to be made not sooner than December 1, 1998. The adjustment shall be in proportion to any change in construction costs since the effective date of this subsection under this subsection, or the last adjustment whichever is later. No adjustment shall be made for a biennium, if the adjustment to be made would be less than 5%.

AB768, s. 623 Section 623. 779.14 (2) (title) of the statutes is created to read:

AB768,282,7 779.14 (2) (title) Actions on a performance and payment bond.

AB768, s. 624 Section 624. 779.14 (2) (a) 2. of the statutes is amended to read:

AB768,282,14 779.14 (2) (a) 2. Except as provided in subd. 3., failure of the prime contractor or a subcontractor of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier for the performance of labor or furnishing of materials for the purpose of making the public improvement or performing the public work that is the subject of the contract under sub. (1m) with the governmental entity.

AB768, s. 625 Section 625. 779.14 (2) (a) 3. of the statutes is amended to read:

AB768,282,21 779.14 (2) (a) 3. With respect to contracts entered into under s. 84.06 (2) for highway improvements, failure of the prime contractor to comply with a contract, whether express or implied, with a subcontractor or supplier of the prime contractor for the performance of labor or furnishing of materials for the purpose of making the highway improvement that is the subject of the contract under sub. (1m) with the governmental entity.

AB768, s. 626 Section 626. 779.14 (2) (am) 2. c. of the statutes is amended to read:

AB768,283,2 779.14 (2) (am) 2. c. The subcontractor or supplier is listed in the list required to be maintained under sub. (1m) (b) 1. (1e) (b) or in a written contract, or in a document appended to a written contract, between a subcontractor or supplier and the prime contractor.

AB768, s. 627 Section 627. 779.14 (3) (title) of the statutes is created to read:

AB768,283,4 779.14 (3) (title) Actions by a county.

AB768, s. 628 Section 628. 782.01 (1) of the statutes is amended to read:

AB768,283,8 782.01 (1) Every person restrained of personal liberty may prosecute a writ of habeas corpus to obtain relief from such restraint, subject to ss. 782.02, 782.035 and 974.06.

AB768, s. 629 Section 629. 782.02 of the statutes is renumbered 782.02 (1) (intro.) and amended to read:

AB768,283,12 782.02 (1) (intro.) No person shall be entitled to prosecute such a writ who shall have of habeas corpus if any of the following applies:

AB768,283,15 (a) Subject to sub. (2), he or she has been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction or by virtue of any execution issued upon such order or judgment; but no.

AB768,283,19 (2) (a) An order of commitment for any alleged contempt or upon proceedings as for contempt to enforce the rights or remedies of any party shall be deemed is not a judgment or order within the meaning of this section; nor shall any for purposes of sub. (1) (a).

AB768,283,22 (b) Any attachment or other process issued upon any such order be deemed specified in par. (a) is not an execution within the meaning of this section for purposes of sub. (1) (a).

AB768, s. 630 Section 630. 782.02 (1) (b) of the statutes is created to read:

AB768,284,3 782.02 (1) (b) The person is challenging a revocation of probation or parole or a denial of parole and there is another adequate legal remedy for challenging the revocation or denial.

AB768, s. 631 Section 631. 782.02 (1) (c) of the statutes is created to read:

AB768,284,6 782.02 (1) (c) The person has not exhausted all administrative remedies that are available and adequate to challenge his or her imprisonment.

AB768, s. 632 Section 632. 782.03 of the statutes is amended to read:

AB768,284,19 782.03 Petition for writ. Application for the writ shall be by petition, signed either by the prisoner or by some person in his or her behalf, and , except as provided in s. 782.035 (4), may be made to the supreme court, the court of appeals or the circuit court of the county, or to any justice or judge of the supreme court, court of appeals or circuit court or to any court commissioner, within the county where the prisoner is detained; or, except that if there is no judge within the county, or for any cause he or she is incapable of acting, or has refused to grant the writ, then to some application for the writ may be made to a judge residing in an adjoining county ; but every application, made by or on behalf of a person sentenced to the state prisons, must contain a copy of any motion made under s. 974.06 and shall indicate the disposition of the motion and the court in which the disposition was made. If no motion was made, the petition shall so state.

AB768, s. 633 Section 633. 782.035 of the statutes is created to read:

AB768,285,2 782.035 Successive petitions for writ. (1) In this section, "prisoner" means a person who is imprisoned or detained in a prison or jail and who is seeking relief from a judgment of conviction for a crime, from a sentence for a crime, from a revocation of parole or probation or from an action by a government officer, employe or agent that affects the person's imprisonment or the person's status as a probationer or parolee.

AB768,285,7 (2) If a prisoner has previously prosecuted a writ of habeas corpus to obtain relief from imprisonment and the legality of that imprisonment has been determined by a court, the prisoner may not prosecute another writ of habeas corpus to obtain relief from that imprisonment based on a claim that was raised in the previous habeas corpus proceeding.

AB768,285,13 (3) If a prisoner has previously prosecuted a writ of habeas corpus to obtain relief from imprisonment and the legality of that imprisonment has been determined by a court, the prisoner may not prosecute another writ of habeas corpus to obtain relief from that imprisonment based on a claim that was not raised in the previous habeas corpus proceeding unless the prisoner makes a prima facie showing in his or her petition that any of the following applies to the claim:

AB768,285,17 (a) The claim relies on a rule of constitutional law that was established by the supreme court of this state or the United States after the previous determination of the legality of the imprisonment or restraint and that the supreme court held to apply retroactively to cases on collateral review.

AB768,285,24 (b) The facts underlying the claim could not previously have been discovered through the exercise of due diligence and, if proven and viewed in light of the evidence as a whole, would establish by clear and convincing evidence that, but for a constitutional error, no reasonable factfinder would have found the prisoner guilty of the offense for which he or she is imprisoned or, if the prisoner is challenging a revocation of probation or parole, no reasonable factfinder would have found that the prisoner violated the conditions of probation or parole.

AB768,286,5 (4) A prisoner may file a successive petition for a writ of habeas corpus only in the circuit court in the county of venue specified in s. 801.50 (4). The circuit court shall dismiss the petition if it raises a claim raised in a previous habeas corpus proceeding or, if the petition raises a claim not raised in a previous habeas corpus proceeding, if it does not satisfy any of the criteria specified in sub. (3) (a) or (b).

AB768, s. 634 Section 634. 782.04 (intro.), (1), (2), (3) and (5) of the statutes are renumbered 782.04 (1m) (intro.), (a), (b), (c) and (d), and 782.04 (1m) (intro.), as renumbered, is amended to read:

AB768,286,10 782.04 (1m) (intro.) Such A petition for a writ of habeas corpus must be verified and must state in substance all of the following:

AB768, s. 635 Section 635. 782.04 (3m) and (4m) of the statutes are created to read:

AB768,286,17 782.04 (3m) If the petitioner is a prisoner, as defined in s. 782.035 (1), the petition shall state whether the prisoner has filed a previous petition challenging his or her imprisonment. If the prisoner has filed a previous petition challenging his or her imprisonment, the petition must contain a copy of the previous petition and shall indicate the disposition of the petition and the court in which the disposition was made.

AB768,286,19 (4m) If the petitioner is imprisoned in a prison or jail under a sentence for a crime, the petition shall comply with all of the following:

AB768,286,22 (a) The petition must contain a copy of any motion made under s. 974.06 and shall indicate the disposition of the motion and the court in which the disposition was made. If no motion was made under s. 974.06, the petition shall so state.

AB768,287,2 (b) The petition shall state whether the prisoner has challenged his or her imprisonment, or the proceeding that resulted in his or her imprisonment, in an appeal under s. 974.02 or a proceeding for review by writ of certiorari and, if so, the outcome of the appeal or proceeding.

AB768, s. 636 Section 636. 782.04 (4) of the statutes is renumbered 782.04 (2m) and amended to read:

AB768,287,11 782.04 (2m) If the prisoner's imprisonment is by virtue of any order or process, a copy thereof of the order or process must be annexed, to the petition or it the petition must be averred allege either that, by reason of such the prisoner being removed or concealed, a demand of such for a copy of the order or process could not be made or that such a demand was made and a fee of $1 therefor for the copy was tendered to the person having such prisoner in custody, and that such copy was of the prisoner but the person refused to provide the copy.

AB768, s. 637 Section 637. 782.045 of the statutes is created to read:

AB768,287,18 782.045 Time for filing petition for writ. (1) In this section, "prisoner" means a person who is imprisoned or detained in a prison or jail and who is seeking relief from a judgment of conviction for a crime, from a sentence for a crime, from a revocation of parole or probation or from an action by a government officer, employe or agent that affects the person's imprisonment or the person's status as a probationer or parolee.

AB768,287,20 (2) A person prosecuting a writ of habeas corpus shall file a petition for a writ of habeas corpus within one year after whichever of the following dates is latest:

AB768,287,25 (a) The date on which the time expires for appealing or seeking postconviction relief under s. 974.02, if the person did not appeal or seek postconviction relief under s. 974.02, or the date on which the appeal or motion seeking postconviction relief is finally adjudicated, if the person did appeal or seek postconviction relief under s. 974.02.

AB768,288,3 (b) The date on which a state law that prevented a person from filing a petition for a writ of habeas corpus is declared to violate the constitution or laws of this state or the constitution of the United States.

AB768,288,9 (c) The date on which the rule of constitutional law on which the petition is based is recognized, if the person is alleging that his or her imprisonment is in violation of a rule of constitutional law under the constitution of this state or the United States that is newly recognized by the supreme court of this state or the United States and that is made retroactively applicable to pending cases on collateral review.

AB768,288,11 (d) The date on which the facts on which the petition is based could have been discovered through the exercise of due diligence.

AB768, s. 638 Section 638. 782.195 of the statutes is created to read:

AB768,288,19 782.195 Effect of previous appeals and postconviction motions. (1) Except as provided in sub. (2), if, before he or she filed a petition for a writ of habeas corpus, a prisoner challenged his or her imprisonment, or the proceeding that resulted in his or her imprisonment, in an appeal or postconviction motion under s. 974.02 or 974.06 or a review by writ of certiorari, a court or judge proceeding under this chapter is bound as to all issues of law and fact decided by the final adjudication of the appeal, postconviction motion or proceeding for certiorari.

AB768,289,2 (2) A court or judge proceeding under this chapter is not bound under sub. (1) by an issue of law and fact decided by the final adjudication of an appeal, postconviction motion or action for certiorari if the prisoner demonstrates by clear and convincing evidence that there is a material fact that did not appear in the record of the appeal, postconviction motion or proceeding for certiorari, that the fact would probably change the outcome of the appeal, postconviction motion or proceeding for certiorari and that by exercising due diligence he or she could not have caused that fact to appear in the record.

AB768, s. 639 Section 639. 782.20 of the statutes is amended to read:

AB768,289,7 782.20 When party discharged. If Except as provided in s. 782.205, if no legal cause be shown for such imprisonment or restraint or for the continuance thereof the court or judge shall make a final order discharging such party from the custody or restraint.

AB768, s. 640 Section 640. 782.205 of the statutes is created to read:

AB768,289,13 782.205 No discharge or default for failure to make return. If a respondent neglects to obey and make return to a writ of habeas corpus, the court or judge may not discharge a prisoner from custody or restraint or otherwise grant a default judgment against the respondent but shall proceed as provided under ss. 782.16, 782.17, 782.18 and 782.19, as applicable.