16.75(2m)(i)
(i) This subsection does not apply to the purchase of printing or stationery.
16.75(3)
(3) The department may let contracts in excess of funds available. Except in the cases to which
s. 18.10 (1) applies, any such contract shall state in substance that its continuance beyond the limits of funds already available is contingent upon appropriation of the necessary funds. Contracts may be for any term deemed to be in the best interests of the state but the terms and provisions for renewal or extension, if any, shall be incorporated in the bid specifications and the contract document.
16.75(3m)(a)(a) In this subsection, "minority business" means a business certified by the department of commerce under
s. 560.036 (2).
16.75(3m)(b)
(b) The department and any agency making purchases under
s. 16.74 shall attempt to ensure that 5% of the total amount expended under this subchapter in each fiscal year is paid to minority businesses. Except as provided under
sub. (7), the department may purchase materials, supplies, equipment and contractual services from any minority business submitting a qualified responsible competitive bid that is no more than 5% higher than the apparent low bid or competitive proposal that is no more than 5% higher than the most advantageous offer. In administering the preference for minority businesses established in this paragraph, the department and any agency making purchases under
s. 16.74 shall maximize the use of minority businesses which are incorporated under
ch. 180 or which have their principal place of business in this state.
16.75(3m)(c)1.1. After completing any contract under this subchapter, the contractor shall report to the agency that awarded the contract any amount of the contract that was subcontracted to minority businesses.
16.75(3m)(c)2.
2. Each agency shall report to the department at least semiannually, or more often if required by the department, the total amount of money it has expended for contracts and orders awarded to minority businesses and the number of contacts with minority businesses in connection with proposed purchases.
16.75(3m)(c)3.
3. The department shall maintain and annually publish data on state purchases from minority businesses, including amounts expended and the percentage of total expenditures awarded to minority businesses.
16.75(3m)(c)4.
4. The department shall annually prepare and submit a report to the governor and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under
s. 13.172 (3), on the total amount of money paid to and of indebtedness or other obligations underwritten by minority businesses, minority financial advisers and minority investment firms under the requirements of this subsection and
ss. 16.855 (10m),
16.87 (2),
25.185,
84.075 and
565.25 (2) (a) 3. and on this state's progress toward achieving compliance with
par. (b) and
ss. 16.855 (10m) (a),
16.87 (2),
25.185 and
84.075 (1).
16.75(3m)(c)5.
5. In determining whether a purchase, contract or subcontract complies with the goal established under
par. (b) or
s. 16.855 (10m),
16.87 (2) or
25.185 the department shall include only amounts paid to minority businesses, minority financial advisers and minority investment firms certified by the department of commerce under
s. 560.036 (2).
16.75(3t)(b)
(b) All commodities required to be furnished by the department which are produced at the institutions of the state shall be purchased from the institutions if the commodities conform to the specifications prepared by the department.
16.75(3t)(c)
(c) The department of corrections shall periodically provide to the department of administration a current list of all materials, supplies, equipment or contractual services, excluding commodities, that are supplied by prison industries, as created under
s. 303.01. The department of administration shall distribute the list to all designated purchasing agents under
s. 16.71 (1). Prior to seeking bids or competitive sealed proposals with respect to the purchase of any materials, supplies, equipment or contractual services enumerated in the list, the department of administration or any other designated purchasing agent under
s. 16.71 (1) shall offer prison industries the opportunity to supply the materials, supplies, equipment or contractual services if the department of corrections is able to provide them at a price comparable to one which may be obtained through competitive bidding or competitive sealed proposals and is able to conform to the specifications, provided the specifications are written in accordance with
s. 16.72 (2) (d). If the department of administration or other purchasing agent is unable to determine whether the price of prison industries is comparable, it may solicit bids or competitive proposals before awarding the order or contract. This paragraph does not apply to the printing of the following forms:
16.75(3t)(c)1.
1. Forms that must be completed by applicants for admission to an institution of the university of Wisconsin system or by students of such an institution who are applying for financial aid, including loans, or for a special course of study or who are adding or dropping courses, registering or withdrawing, establishing their residence or being identified or classified.
16.75(3t)(c)3.
3. Forms used by teachers to evaluate a student's academic performance.
16.75(3t)(c)4.
4. Forms used by hospitals and health care providers to bill or collect from patients and 3rd parties.
16.75(3t)(c)5.
5. Forms used by medical personnel in the treatment of patients.
16.75(3t)(c)6.
6. Forms used to collect data from research subjects in the course of research projects administered by the board of regents of the university of Wisconsin system.
16.75(4)(a)(a) The department shall encourage the participation of small businesses and veteran-owned businesses in the statewide purchasing program by ensuring that there are no undue impediments to such participation and by actively encouraging small businesses and veteran-owned businesses to play an active role in the solicitation of purchasing business by agencies. To that end the department shall:
16.75(4)(a)1.
1. Maintain comprehensive lists of small businesses and of veteran-owned businesses located in this state which have indicated a willingness to provide materials, supplies, equipment or contractual services to the state.
16.75(4)(a)2.
2. Develop ways of simplifying specifications and terms so that they will not impose unnecessary administrative burdens on small businesses and veteran-owned businesses located in this state which submit bids or proposals to the state.
16.75(4)(a)3.
3. Assist small businesses and veteran-owned businesses located in this state in complying with the state's competitive bidding and competitive proposal procedures.
16.75(4)(a)4.
4. Notify businesses on the lists maintained under
subd. 1. of agency purchasing requests for which the businesses may wish to submit a bid or proposal.
16.75(4)(a)5.
5. By October 1 of each year, submit a report to the council on small business, veteran-owned business and minority business opportunities which evaluates the performance of small businesses located in this state in submitting bids or proposals to the state and makes recommendations for increased involvement of such businesses in submitting competitive bids and proposals under this section.
16.75(4)(b)
(b) The department shall seek the cooperation and assistance of the department of commerce in the performance of its duties under
par. (a).
16.75(4)(c)
(c) In this section and
s. 16.755, "small business" means a business which has had less than $1.5 million in gross annual sales in the most recent calendar or fiscal year.
16.75(4)(d)
(d) In this subsection and
s. 16.755, "veteran-owned business" means a small business, as defined in
par. (c), that is certified by the department of veterans affairs as being at least 51% owned by one or more veterans, as defined in
s. 45.35 (5).
16.75(5)
(5) The department may require of bidders, persons making proposals under
sub. (2m) or contractors such sureties as, in its judgment, are deemed advisable and may decide as to their responsibility and competency. The department may require a contractor to provide a bond furnished by a surety company authorized to do business in this state, for the proper performance of each contract.
16.75(6)(a)(a) Except with respect to purchases of printing and stationery,
subs. (1) to
(5) do not apply to the purchase of supplies, materials, equipment or contractual services from the federal government.
16.75(6)(am)1.1. In this paragraph, "major procurement" means a procurement by the department for the use of the division of information technology services that is related to the functions of the division.
16.75(6)(b)
(b) If the secretary determines that it is in the best interest of this state to do so, he or she may waive the requirements of
subs. (1) to
(5) and may purchase supplies, materials, equipment or contractual services, other than printing and stationery, from another state, from any county, city, village, town or other governmental body in this state or from a regional or national consortium composed of nonprofit institutions that support governmental or educational services, or through a contract established by one of those entities with one or more 3rd parties.
16.75(6)(bm)
(bm) If the secretary determines that it is in the best interest of this state to do so, he or she may waive any requirement under
subs. (1) to
(5) and
ss. 16.705 and
16.72 (2) (e) and
(f) and
(5) with respect to any contract entered into by the department of industry, labor and job development under
s. 49.143, if the department of industry, labor and job development presents the secretary with a process for the procurement of contracts under
s. 49.143 and the secretary approves the process.
16.75(6)(c)
(c) If the secretary determines that it is in the best interest of this state to do so, he or she may, with the approval of the governor, waive the requirements of
subs. (1) to
(5) and may purchase supplies, material, equipment or contractual services, other than printing and stationery, from a private source other than a source specified in
par. (b). Except as provided in
sub. (2g) (c), if the cost of the purchase is expected to exceed $25,000, the department shall publish a class 2 notice under
ch. 985 describing the materials, supplies, equipment or contractual services to be purchased, stating the intent to make the purchase from a private source without soliciting bids or competitive sealed proposals and stating the date on which the contract or purchase order will be awarded. The date shall be at least 7 days after the date of the last insertion.
16.75(6)(d)
(d) If the governor determines that it is in the best interest of this state to do so, he or she may issue a general waiver of the requirements of
subs. (1) to
(5) permitting the purchase of specified materials, supplies, equipment or contractual services, except printing and stationery, from a private source. A general waiver may be issued for any period up to one year. The governor may impose any necessary or appropriate condition or restriction on the waiver.
16.75(6)(e)
(e) The governor or his or her designee may waive any requirement of this subchapter if the governor or his or her designee finds that there exists an emergency which threatens the public health, safety or welfare and the waiver is necessary to meet the emergency. The governor or his or her designee shall require the award of each contract under this paragraph to be made with such competition as is practicable under the circumstances. The governor or his or her designee shall file with the department a statement of facts constituting the emergency for each waiver issued under this paragraph, and a statement of the basis for selection of each contractor under the emergency procedure. This paragraph does not apply to the requirement specified in
sub. (7).
16.75(6)(f)
(f) The department shall keep a record of each individual or general waiver under
pars. (b) to
(e). The record shall be open to public inspection.
16.75(7)
(7) Stationery and printing shall be purchased from the lowest responsible bidder without regard to the amount of the purchase, except when the department of administration exercises the discretion vested in it by
s. 16.82 (4).
16.75(8)(a)1.1. The department, any other designated purchasing agent under
s. 16.71 (1), any agency making purchases under
s. 16.74 and each authority other than the University of Wisconsin Hospitals and Clinics Authority shall, to the extent practicable, make purchasing selections using specifications developed under
s. 16.72 (2) (e) to maximize the purchase of materials utilizing recycled materials and recovered materials.
16.75(8)(a)2.
2. Each agency and authority other than the University of Wisconsin Hospitals and Clinics Authority shall ensure that the average recycled or recovered content of all paper purchased by the agency or authority measured as a proportion, by weight, of the fiber content of paper products purchased in a fiscal year, is not less than the following:
16.75(9)
(9) The department, any other designated purchasing agent under
s. 16.71 (1), any agency making purchases under
s. 16.74 and any authority other than the University of Wisconsin Hospitals and Clinics Authority shall, to the extent practicable, make purchasing selections using specifications prepared under
s. 16.72 (2) (f).
16.75(10)
(10) An agency that has building, fleet or energy management responsibilities shall, to the extent cost-effective and technically feasible, rely upon energy systems that utilize fuels produced in this state. In reviewing bids for the purchase of fuels or energy systems or equipment, the agency shall purchase fuel or energy systems or equipment produced in this state if the cost of the lowest responsible bid for such fuel or energy systems or equipment is no greater than the lowest responsible bid for fuel or energy systems or equipment produced outside of this state.
16.75(11)(a)(a) In this subsection, "consumer price index" means the average of the consumer price index over each 12-month period, all items, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.
16.75(11)(b)
(b) The department may, by rule, biennially adjust the dollar amounts specified in
subs. (1) (b) and
(c),
(2m) (b) and
(c) and
(6) (c) by an amount not exceeding the amount determined in accordance with this subsection. To determine the maximum adjustment, the department shall calculate the percentage difference between the consumer price index for the 12-month period ending on December 31 of the most recent odd-numbered year and the consumer price index for the base period, calendar year 1995. The department may adjust the amounts specified under
subs. (1) (b) and
(c),
(2m) (b) and
(c) and
(6) (c) by an amount not exceeding that amount biennially, rounded to the nearest multiple of $1,000. If after such rounding the amounts are different than the amounts currently prescribed, the department shall by rule prescribe revised amounts, which amounts shall be in effect until a subsequent rule is promulgated under this subsection. Notwithstanding
s. 227.24 (3), determinations under this subsection may be promulgated as an emergency rule under
s. 227.24 without a finding of emergency.
16.75 History
History: 1975 c. 224;
1977 c. 418,
419;
1979 c. 34,
221,
314,
340,
355;
1979 c. 361 s.
112;
1981 c. 121 s.
20;
1983 a. 27 ss.
91,
93 to
99;
1983 a. 333 ss.
3g,
3r to
4b,
6;
1983 a. 368,
390;
1985 a. 29 ss.
122m to
124,
3200 (1);
1985 a. 180;
1987 a. 27,
119,
142,
147,
186,
399,
403;
1989 a. 31,
335,
345,
359;
1991 a. 39,
170;
1993 a. 16,
414;
1995 a. 27 ss.
368 to
382,
9116 (5);
1995 a. 225,
227,
244,
289,
432.
16.75 Note
NOTE: 1991 Wis. Act 170, which amends this section, contains an extensive prefatory note concerning veteran-owned businesses.
16.75 Annotation
The state can ask for alternative bids; if abuse of discretion is claimed in accepting a bid, a flagrant abuse of discretion amounting to fraud must be shown. Automatic Merchandising Corp. v. Nusbaum, 60 W (2d) 362, 210 NW (2d) 745.
16.75 Annotation
Preference for Wisconsin businesses under 16.75 (1) (a) and 16.855 (1) operates only in case of a tie bid.
74 Atty. Gen. 47.
16.752
16.752
Procurement from work centers for severely handicapped individuals. 16.752(1)(c)
(c) "Direct labor" means all labor or work involved in producing or supplying materials, supplies or equipment or performing contractual services including preparation, processing and packing, but excluding supervision, administration, inspection and shipping.
16.752(1)(d)
(d) "Severely handicapped individual" means an individual who has a physical, mental or emotional disability which is a substantial handicap to employment and prevents the individual from engaging in normal competitive employment.
16.752(1)(e)
(e) "Work center" means a charitable organization or nonprofit institution which is licensed under
s. 104.07 and incorporated in this state or a unit of county government which is licensed under
s. 104.07, and which is operated for the purpose of carrying out a program of rehabilitation for severely handicapped individuals and for providing the individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature, and which is engaged in the production of materials, supplies or equipment or the performance of contractual services in connection with which not less than 75% of the total hours of direct labor are performed by severely handicapped individuals.
16.752(2)
(2) Duties of the state use board. The board shall:
16.752(2)(a)
(a) Coordinate and monitor the implementation of this section.
16.752(2)(b)
(b) Aid in the identification of materials, supplies, equipment and contractual services to be procured by agencies from work centers.
16.752(2)(c)
(c) Establish eligibility criteria for work centers participating in the program established under this section.
16.752(2)(d)
(d) At least annually, establish and review fair market prices for materials, supplies, equipment and contractual services to be purchased from work centers.
16.752(2)(e)
(e) No later than October 1, prepare and submit to the secretary an annual report concerning its activities, including:
16.752(2)(e)1.
1. A summary of materials, supplies, equipment and contractual services purchased by agencies from work centers.
16.752(2)(e)2.
2. The names of work centers participating in the program established under this section.
16.752(2)(e)3.
3. The impact of the program established under this section upon production, work stabilization and program development of, and the number of severely handicapped individuals served by, participating work centers.
16.752(2)(f)
(f) At least annually, conduct a review of the prices paid by agencies for the materials, supplies, equipment and contractual services provided by work centers and make any adjustments necessary to establish fair market price.
16.752(2)(g)
(g) Promulgate rules regarding specifications, time of delivery and designation of materials, supplies, equipment and contractual services to be supplied by work centers. The board shall maintain a list of each material, supply, piece of equipment or contractual service to be supplied by work centers, and shall assign a number to each item on the list. Specifications of the board shall be consistent with specifications prescribed by agencies for which procurements are made.
16.752(2)(h)
(h) Review each order and contract for the impact that the requirements of
sub. (7) have on each supplier or contractor, and assure that the requirements do not affect more than 15% of the supplier's or contractor's current yearly sales or production.
16.752(2)(i)
(i) Prescribe a surcharge to be paid by each agency, which shall be payable to the department within a time and in accordance with a procedure specified by the board.
16.752(7)
(7) Qualification of work centers. To qualify for participation under the program established under this section, a work center shall submit to the board a copy of its license under
s. 104.07 together with the following documents, transmitted by a letter signed by an officer of the work center:
16.752(7)(a)
(a) In the case of a charitable organization or nonprofit institution:
16.752(7)(a)1.
1. A legible copy of the articles of incorporation of the organization showing the date of filing with the department of financial institutions.
16.752(7)(a)2.
2. A copy of the bylaws of the organization certified by an officer.
16.752(7)(a)3.
3. A copy of a letter from the federal internal revenue service indicating that the organization qualifies as a tax-exempt organization.
16.752(7)(b)
(b) In the case of a unit of county government, a copy of the ordinance or resolution of the county board of supervisors authorizing or directing the establishment of the work center.
16.752(8)
(8) Responsibilities of work centers. Each work center participating in the program established under this section shall:
16.752(8)(a)
(a) Furnish materials, supplies, equipment and services in strict accordance with orders issued by agencies.
16.752(8)(b)
(b) Make its records available for public inspection at any reasonable time.
