16.72 Note
NOTE: Sub. (9) was created as sub. (8) by
1997 Wis. Act 212 and renumbered by the revisor under s. 13.93 (1) (b).
16.72 Annotation
Computer programs may be sold as surplus provided the programs were not created for resale purposes. 59 Atty. Gen. 144.
16.73
16.73
Cooperative purchasing. 16.73(1)
(1) The department may enter into an agreement with a municipality or group of municipalities, and municipalities may enter into agreements with each other, under which any of the parties may agree to participate in, administer, sponsor or conduct purchasing transactions under a joint contract for the purchase of materials, supplies, equipment, permanent personal property, miscellaneous capital or contractual services. This subsection does not apply to construction contracts that are subject to
s. 16.855 or
66.29.
16.73(2)
(2) The department may purchase and store in warehouses articles that may be needed by agencies and municipalities. The department may sell stored articles to municipalities at cost.
16.73(3)
(3) The department may, upon request, make available to municipalities technical purchasing information including, but not limited to, standard forms, manuals, product specifications and standards and contracts or published summaries of contracts, including price and delivery information.
16.73(4)(a)(a) When it is in the best interest of the state and consistent with competitive purchasing practices, the department may enter into agreements with purchasing agents of any other state or the federal government under which any of the parties may agree to participate in, administer, sponsor or conduct purchasing of materials, supplies, equipment, permanent personal property, miscellaneous capital or contractual services. The state may purchase from any vendor selected as a result of such purchasing agreements. This paragraph does not apply to construction contracts that are subject to
s. 16.855 or
66.29.
16.73(4)(b)
(b) The department may cooperate with purchasing agents and other interested parties of any other state or the federal government to develop uniform purchasing specifications under
s. 16.72 (2) on a regional or national level to facilitate cooperative interstate purchasing transactions.
16.73(5)
(5) If the department designates the board of regents of the University of Wisconsin System as its purchasing agent for any purpose under
s. 16.71 (1), the board may enter into a contract to sell any materials, supplies, equipment or contractual services purchased by the board to the University of Wisconsin Hospitals and Clinics Authority, and may contract with the University of Wisconsin Hospitals and Clinics Authority for the joint purchase of any materials, supplies, equipment or contractual services if the sale or purchase is made consistently with that delegation and with this subchapter.
16.74
16.74
Legislative and judicial branch purchasing. 16.74(1)(1) All supplies, materials, equipment, permanent personal property and contractual services required within the legislative branch shall be purchased by the joint committee on legislative organization or by the house or legislative service agency utilizing the supplies, materials, equipment, property or services. All supplies, materials, equipment, permanent personal property and contractual services required within the judicial branch shall be purchased by the director of state courts or the judicial branch agency utilizing the supplies, materials, equipment, property or services.
16.74(2)(a)(a) Requisitions for legislative branch purchases shall be signed by the cochairpersons of the joint committee on legislative organization or their designees for the legislature, by an individual designated by either house of the legislature for the house, or by the head of any legislative service agency, or the designee of that individual, for the legislative service agency. Requisitions for judicial branch purchases shall be signed by the director of state courts or by an individual designated by the director for the courts, or by the head of any judicial branch agency, or the designee of that individual, for the judicial branch agency.
16.74(2)(b)
(b) Contracts for purchases by the senate or assembly shall be signed by an individual designated by the organization committee of the house making the purchase. Contracts for other legislative branch purchases shall be signed by an individual designated by the joint committee on legislative organization. Contracts for purchases by the judicial commission or judicial council shall be signed by an individual designated by the commission or council, respectively. Contracts for other judicial branch purchases shall be signed by an individual designated by the director of state courts.
16.74(3)
(3) Each legislative and judicial officer who is authorized to make purchases or engage services under this section may prescribe the form of requisitions or contracts for the purchases and engagements. Requisitions and contracts shall be maintained by the officer and shall be subject to inspection and copying under
subch. II of ch. 19. No such requisition or contract need be filed with the department.
16.74(4)
(4) Each legislative and judicial officer shall file all bills and statements for purchases and engagements made by the officer under this section with the secretary, who shall audit and authorize payment of all lawful bills and statements. No bill or statement for any purchase or engagement for the legislature, the courts or any legislative service or judicial branch agency may be paid until the bill or statement is approved by the requisitioning or contracting officer under
sub. (2).
16.74(5)
(5) The department, upon request, shall make recommendations and furnish assistance to the courts, to either house of the legislature or to any legislative service or judicial branch agency regarding purchasing procedure. The department, upon request, shall process requisitions for purchases submitted by the courts, the legislature or any legislative service or judicial branch agency and shall procure materials, supplies, equipment, property and services for the courts, the legislature and legislative service and judicial branch agencies in accordance with the purchasing procedure prescribed for executive branch agencies under this subchapter.
16.74(6)
(6) All stationery and printing purchased under this section shall be procured from the lowest responsible bidder.
16.74 History
History: 1985 a. 29.
16.75
16.75
Buy on low bid, exceptions. 16.75(1)(a)1.1. All orders awarded or contracts made by the department for all materials, supplies, equipment and contractual services to be provided to any agency, except as otherwise provided in
par. (c) and
subs. (2),
(2g),
(2m),
(3m),
(3t),
(6),
(7),
(8) and
(9) and
ss. 16.73 (4) (a),
16.754,
50.05 (7) (f),
287.15 (7) and
301.265, shall be awarded to the lowest responsible bidder, taking into consideration life cycle cost estimates under
sub. (1m), when appropriate, the location of the agency, the quantities of the articles to be supplied, their conformity with the specifications, and the purposes for which they are required and the date of delivery.
16.75(1)(a)2.
2. If a vendor is not a Wisconsin producer, distributor, supplier or retailer and the department determines that the state, foreign nation or subdivision thereof in which the vendor is domiciled grants a preference to vendors domiciled in that state, nation or subdivision in making governmental purchases, the department and any agency making purchases under
s. 16.74 shall give a preference over that vendor to Wisconsin producers, distributors, suppliers and retailers, if any, when awarding the order or contract. The department may enter into agreements with states, foreign nations and subdivisions thereof for the purpose of implementing this subdivision.
16.75(1)(a)3.
3. Bids may be received only in accordance with such specifications as are adopted by the department as provided in this subsection. Any or all bids may be rejected. Each bid, with the name of the bidder, shall be entered on a record, and each record with the successful bid indicated shall, after the award or letting of the contract, be opened to public inspection. Where a low bid is rejected, a complete written record shall be compiled and filed, giving the reason in full for such action. Any waiver of sealed, advertised bids as provided in
sub. (2m) or
(6) shall be entered on a record kept by the department and open to public inspection.
16.75(1)(b)
(b) When the estimated cost exceeds $25,000, due notice inviting bids shall be published as a class 2 notice, under
ch. 985, and the bids shall not be opened until at least 7 days from the last day of publication. The official advertisement shall give a clear description of the materials, supplies, equipment or service to be purchased, the amount of the bond, share draft, check or other draft to be submitted as surety with the bid and the date of public opening.
16.75(1)(c)
(c) Except as provided in
sub. (7), when the estimated cost is $25,000 or less, the award may be made in accordance with simplified procedures established by the department for such transactions.
16.75(1m)
(1m) The department shall award each order or contract for materials, supplies or equipment on the basis of life cycle cost estimates, whenever such action is appropriate. Each authority other than the University of Wisconsin Hospitals and Clinics Authority shall award each order or contract for materials, supplies or equipment on the basis of life cycle cost estimates, whenever such action is appropriate. The terms, conditions and evaluation criteria to be applied shall be incorporated in the solicitation of bids or proposals. The life cycle cost formula may include, but is not limited to, the applicable costs of energy efficiency, acquisition and conversion, money, transportation, warehousing and distribution, training, operation and maintenance and disposition or resale. The department shall prepare documents containing technical guidance for the development and use of life cycle cost estimates, and shall make the documents available to local governmental units.
16.75(2)(a)(a) When the department of administration believes that it is to the best interests of the state to purchase certain patented or proprietary articles, other than printing and stationery, it may purchase said articles without the usual statutory procedure. All equipment shall be purchased from the lowest and best bidder as determined by the bids and a comparison of the detailed specifications submitted with the bids, and after due advertisement as hereinbefore provided. Where the low bid or bids are rejected, a complete written record shall be compiled and filed, giving the reasons in full for such action.
16.75(2)(b)
(b) When the department determines that utility services are available only from a sole source as a result of regulation or of a natural monopoly, these services may be obtained without compliance with the usual procedure under this section.
16.75(2g)(a)(a) The purchasing authority under
s. 16.71 (2) may make purchases for products of and goods for resale by prison industries, other than purchases of printing or stationery, without inviting bids and without accepting the lowest responsible bid.
16.75(2g)(b)
(b) The purchasing authority shall notify the governor prior to any purchase under
par. (a) which exceeds $15,000. The governor has 72 hours, excluding Saturday, Sunday or a legal holiday, in which to veto any such purchase.
16.75(2g)(c)
(c) No notice is required for purchases by prison industries under this subsection. All other purchasing rules and procedures apply to prison industries purchases.
16.75(2m)(a)(a) If the secretary or his or her designee determines that the use of competitive sealed bidding is not practicable or not advantageous to this state, the department may solicit competitive sealed proposals. Each request for competitive sealed proposals shall state the relative importance of price and other evaluation factors.
16.75(2m)(b)
(b) When the estimated cost exceeds $25,000, the department shall publish a class 2 notice under
ch. 985 inviting competitive sealed proposals. The advertisement shall describe the materials, supplies, equipment or service to be purchased, the intent to solicit proposals rather than bids, any requirement for surety and the date the proposals will be opened, which shall be at least 7 days after the date of the last insertion of the notice.
16.75(2m)(c)
(c) When the estimated cost is $25,000 or less, the department may award the order or contract in accordance with simplified procedures established by the department for such transactions.
16.75(2m)(d)
(d) For purposes of clarification, the department may discuss the requirements of the proposed order or contract with any person who submits a proposal and shall permit any offerer to revise his or her proposal to ensure its responsiveness to those requirements.
16.75(2m)(e)
(e) The department shall determine which proposals are reasonably apt to be awarded the order or contract and shall provide each offerer of such a proposal a fair and equal opportunity to discuss the proposal. The department may negotiate with each offerer in order to obtain terms that are advantageous to this state. Prior to the award of the order or contract, any offerer may revise his or her proposal. The department shall keep a written record of all meetings, conferences, oral presentations, discussions, negotiations and evaluations of proposals under this section.
16.75(2m)(f)
(f) In opening, discussing and negotiating proposals, the department may not disclose any information that would reveal the terms of a competing proposal.
16.75(2m)(g)
(g) After receiving each offerer's best and final offer, the department shall determine which proposal is most advantageous and shall award the order or contract to the person who offered it. The department's determination shall be based only on price and the other evaluation factors specified in the request for proposals. The department shall state in writing the reason for the award and shall place the statement in the contract file.
16.75(2m)(h)
(h) Following the award of the order or contract, the department shall prepare a register of all proposals.
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 workforce development under
s. 49.143, if the department of workforce 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.
