16.855(2)(b)1.1. Require that a guarantee of not less than 10% of the amount of the bid shall be included with each bid submitted guaranteeing the execution of the contract within 10 days of offering, if offered within 30 days after the date set for the opening thereof. The parties may agree to extend the time for offering of the contract beyond 30 days after the opening of bids.
16.855(2)(b)2.
2. If the federal government participates in a state project, the bid guarantee required in this paragraph controls, unless the federal government makes a specific provision for a different bid guarantee.
16.855(2)(c)
(c) Publicly open and read aloud, at the time and place specified in the notice, all bids. Within a reasonable time after opening, tabulations of all bids received shall be available for public inspection.
16.855(2)(d)
(d) Not allow or make any correction or alteration of a bid, except as provided in
sub. (6).
16.855(3)
(3) At any time prior to the published time of opening, a bid may be withdrawn on written request submitted to the department by the bidder or the bidder's agent, without prejudice to the right of the bidder to file a new bid.
16.855(4)
(4) If a bid contains an error, omission or mistake, the bidder may limit liability to the amount of the bidder's bid guarantee by giving written notice of intent not to execute the contract to the department within 72 hours of the bid opening. The department of administration, with the approval of the attorney general, may settle and dispose of cases and issues arising under this subsection. However, if no such settlement is obtained, the bidder is not entitled to recover the bid guarantee unless the bidder proves in the circuit court for Dane County that in making the mistake, error or omission the bidder was free from negligence.
16.855(5)
(5) Any or all bids may be rejected if, in the opinion of the department, it is in the best interest of the state. The reasons for rejection shall be given to the bidder or bidders in writing.
16.855(6)
(6) Nothing contained in this section shall prevent the department from negotiating deductive changes in the lowest qualified bid.
16.855(7)
(7) The department may issue contract change orders, if they are deemed to be in the best interests of the state.
16.855(9)
(9) The department may require bidders to submit sworn statements as to financial ability, equipment and experience in construction and require such other information as may be necessary to determine their competency.
16.855(10)
(10) When the department believes that it is in the best interests of the state to contract for certain articles or materials available from only one source, it may contract for said articles or materials without the usual statutory procedure, after a publication of a class 1 notice, under
ch. 985, in the official state newspaper.
16.855(10m)(a)(a) In awarding construction contracts the department shall attempt to ensure that 5% of the total amount expended in each fiscal year is awarded to contractors and subcontractors which are minority businesses, as defined under
s. 16.75 (3m) (a). The department may award any contract to a minority business that submits a qualified responsible bid that is no more than 5% higher than the apparent low bid.
16.855(10m)(b)
(b) Upon completion of any contract, the contractor shall report to the department any amount of the contract that was subcontracted to minority businesses.
16.855(10m)(c)
(c) The department shall maintain and annually publish data on contracts awarded to minority businesses under this subsection and
ss. 16.87 and
84.075.
16.855(10n)(b)
(b) The department shall enter into a memorandum of understanding with the state fair park board which shall specify procedures for construction work and professional services contracts to be performed for the state fair park board under which any person who is awarded such a contract shall agree, as a condition to receiving the contract, that his or her goal shall be to ensure that at least 25% of the employees hired because of the contract will be minority group members and at least 5% of the employees hired because of the contract will be women.
16.855(10p)
(10p) For each proposed construction project, the department shall ensure that the specifications require the use of recovered materials and recycled materials, as defined under
s. 16.70 (11) and
(12), to the extent that such use is technically and economically feasible.
16.855(11)
(11) A contractor shall be liable for any damages to another contractor working on the same project caused by reason of the former's default, act or nonperformance.
16.855(12)
(12) Nothing contained in this section shall be construed so as to make contracts let under this section subject to
s. 66.0901.
16.855(13)(a)(a) A list of subcontractors shall not be required to be submitted with the bid. The department may require the prime contractor to submit in writing the names of prospective subcontractors for the department's approval before the award of a contract to the prime contractor.
16.855(13)(b)
(b) All subcontractors must be approved in writing by the department prior to their employment. Requests for approval of prospective subcontractors shall be in writing.
16.855(13)(c)
(c) Changes may be made in the list of subcontractors, with the agreement of the department and the prime contractor, when in the opinion of the department it is in the best interests of the state to require the change.
16.855(14)(a)(a) If the estimated construction cost of a project exceeds $100,000 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 the estimated construction cost of a project does not exceed $100,000 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) (a), the department shall award all contracts to the lowest qualified responsible bidder or bidders that result in the lowest total construction cost for the project.
16.855(14)(b)
(b) 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, the delayed prime contractor may bring an action for damages against the delaying prime contractor.
16.855(15)
(15) The department shall promulgate rules to implement the advertising and award of contracts.
16.855(16)(a)(a) This section does not apply to contracts between the state and federal government or any agency thereof, or with any political subdivision of the state. Subject to the approval of the governor, the requirements of this section may be waived in emergency situations involving the public health, welfare or safety or with respect to contracting with public utilities, but only when any such waiver is deemed by the governor to be in the best interests of the state.
16.855(16)(b)2.
2. In emergency situations, the governor may approve repairs and construction in lieu of building commission approval under
s. 13.48 (10), and for such purposes, may authorize the expenditure of up to $250,000 from the state building trust fund or from other available moneys appropriated to an agency derived from any revenue source. The governor shall report any such authorization to the building commission at its next regular meeting following the authorization.
16.855(17)
(17) This section does not apply to any project on which the work is to be performed by inmates or patients in institutions under the jurisdiction of the department of corrections or the department of health and family services working under the supervision or with the assistance of state employees.
16.855(18)
(18) This section shall not apply to restoration or reconstruction of the state capitol building, historic structures at the old world Wisconsin site and at Heritage Hill state park when the department determines that a waiver of this section would serve the best interests of this state.
16.855(19)
(19) As the work progresses under any contract for construction the department, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work done, 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 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 amount retained may be paid to the contractor. 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. This subsection does not apply to contracts awarded under
s. 16.858.
16.855(20)
(20) This section does not apply to construction work performed by University of Wisconsin System students when the construction work performed is a part of a curriculum and where the work is course-related for the student involved. Prior approval of the building commission must be obtained for all construction projects to be performed by University of Wisconsin System students.
16.855(21)
(21) This section does not apply to contracts by the department of natural resources for construction work related to hazardous substance spill response under
s. 292.11 or environmental repair under
s. 292.31.
16.855(22)
(22) The provisions of this section, except
sub. (10m), do not apply to construction work for any project the estimated construction cost of which does not exceed $100,000 if the project is constructed in accordance with policies and procedures prescribed by the building commission under
s. 13.48 (29). If the estimated construction cost of any project is at least $30,000, and the building commission elects to utilize the procedures prescribed under
s. 13.48 (29) to construct the project, the department shall provide adequate public notice of the project and the procedures to be utilized to construct the project on a publicly accessible computer site.
16.855 Cross-reference
Cross Reference: See also ch.
Adm 21, Wis. adm. code.
16.855 Annotation
Under subs. (2) (a) 2. and (14), the department has authority to create a division of work not limited to traditional trade practices, which may include work divisions other than the four enumerated in the statute if the new division involves a specialized area of construction, e.g., elevator work that is commonly designated a division, although it involves the electrical trade. Breiby v. Dept. of Administration,
55 Wis. 2d 16,
197 N.W.2d 737 (1972).
16.855 Annotation
A bid proposal asking for the name of a subcontractor is contrary to sub. (13) (a), and the request is invalid. 61 Atty. Gen. 224.
16.855 Annotation
The preference for Wisconsin businesses under ss. 16.75 (1) (a) and 16.855 (1) operates only in case of a tie bid.
74 Atty. Gen. 47.
16.858
16.858
Energy conservation audits and construction projects. 16.858(1)(1) The department may contract with a qualified contractor for an energy conservation audit to be performed at any state-owned building, structure or facility. Under the contract, the contractor shall prepare a report containing a description of the physical modifications to be performed to the building, structure or facility that are required to effect specific future energy savings within a specified period and a determination of the minimum savings in energy usage that will be realized by the state from making these modifications within that period. After review of the audit report and subject to approval under
s. 13.48 (10), where required, the department may contract with the contractor for construction work to be performed at the building, structure or facility for the purpose of realizing potential savings of future energy costs identified in the audit if, in the judgment of the department, the anticipated savings to the state after completion of the work will enable recovery of the costs of the work within a reasonable period of time.
16.858(2)(a)(a) A contract under
sub. (1) may provide for the construction work to be financed by the state or by the contractor. The contract shall provide for the state to pay a stated amount, which shall include any financing costs incurred by the contractor. The stated amount may not exceed the minimum savings determined under the audit to be realized by the state within the period specified in the audit. The state shall make payments under the contract as the savings identified in the audit are realized by the state, in the amounts actually realized, but not to exceed the lesser of the stated amount or the actual amount of the savings realized by the state within the period specified in the audit. If the department provides financing for construction work, the department may finance any portion of the cost of the work under a master lease entered into as provided under
s. 16.76 (4). If the department provides financing for the construction work and the stated amount to be paid by the state under the contract is greater than the amount of the savings realized by the state within the period specified in the audit under
sub. (1), the contract shall require the contractor to remit the difference to the department.
16.858(2)(b)
(b) The department shall charge the cost of payments made by the state to the contractor to the applicable appropriation for fuel and utility costs at the building, structure or facility where the work is performed in the amounts equivalent to the savings that accrue to the state under that appropriation from expenditures not made as a result of the construction work, as determined by the department in accordance with the contract. The department may also charge its costs for negotiation, administration and financing of the contract to the same appropriation.
16.858(3)
(3) Any contract under
sub. (1) shall include a provision stating in substance that payments under the contract are contingent upon available appropriations.
16.858(4)
(4) No later than January 1 of each year, the secretary shall report to the cochairpersons of the joint committee on finance identifying any construction work for which the department has contracted under this section for which final payment has not been made as of the date of the preceding report, together with the actual energy cost savings realized by the state as a result of the contract to date, or the estimated energy cost savings to be realized by the state if the total savings to be realized in the audit under
sub. (1) have not yet been realized, the date on which the state made its final payment under the contract or, if the final payment has not been made, the latest date on which the state is obligated to make its final payment under the contract, and any amount that remains payable to the state under the contract.
16.858 History
History: 1997 a. 27;
1999 a. 9.
16.865
16.865
Department of administration; statewide risk management coordination. The department shall:
16.865(1)
(1) Be responsible for statewide risk management coordination in order to:
16.865(1)(a)
(a) Protect the state from losses which are catastrophic in nature and minimize total cost to the state of all activities related to the control of accidental loss.
16.865(1)(b)
(b) Place emphasis on the reduction of loss through professional attention to scientific loss control techniques and by motivational incentives, prompt claims payments and other loss prevention measures.
16.865(2)
(2) Identify and evaluate exposure to loss to the state, its employees or injury to the public by reason of fire or other accidents and fortuitous events at state-owned properties or facilities.
16.865(3)
(3) Recommend changes in procedures, program conditions or capital improvement for all agencies which would satisfactorily eliminate or reduce the existing exposure.
16.865(4)
(4) Manage the state employees' worker's compensation program and the statewide self-funded programs to protect the state from losses of and damage to state property and liability.
16.865(5)
(5) Arrange appropriate insurance contracts for the transfer of risk of loss on the part of the state or its employees, to the extent such loss cannot reasonably be assumed by the individual agencies or the self-funded programs. The placement of insurance may be by private negotiation rather than competitive bid, if such insurance has a restricted number of interested carriers. The department shall approve all insurance purchases.
16.865(6)
(6) Train, upgrade and guide appropriate personnel in the agencies in implementation of sound risk management practices.
16.865(7)
(7) Have the authority to contract for investigative and adjustment services as provided in
s. 20.865 (1) (fm) which can be performed more economically or efficiently by such contract.
16.865(8)
(8) Annually in each fiscal year, allocate as a charge to each agency a proportionate share of the estimated costs attributable to programs administered by the agency to be paid from the appropriation under
s. 20.505 (2) (k). The department may charge premiums to agencies to finance costs under this subsection and pay the costs from the appropriation on an actual basis. The department shall deposit all collections under this subsection in the appropriation account under
s. 20.505 (2) (k). Costs assessed under this subsection may include judgments, investigative and adjustment fees, data processing and staff support costs, program administration costs, litigation costs and the cost of insurance contracts under
sub. (5). 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
ch. 231,
232,
233,
234,
235, or
237.
16.865(9)
(9) Notwithstanding
s. 20.001 (3) (c), if the department makes any payment from the appropriation under
s. 20.505 (2) (a), lapse to the general fund from the appropriation account under
s. 20.505 (2) (k) an amount equal to the payment. The department shall effect the lapse required under this subsection in accordance with a schedule determined by the department, but the total amount of each lapse shall be effected no later than 6 years after the date of the payment to which it relates.
16.87
16.87
Approval of contracts by secretary and governor; audit. 16.87(1)(a)
(a) "Construction work" includes all labor and materials used in the framing or assembling of component parts in the erection, installation, enlargement, alteration, repair, moving, conversion, razing, demolition or removal of any appliance, device, equipment, building, structure or facility.
16.87(1)(b)
(b) "Environmental consultant services" includes services provided by environmental scientists, engineers and other experts.
16.87(2)
(2) A contract for engineering services or architectural services or a contract involving an expenditure of $10,000 or more for construction work, or $30,000 or more for limited trades work, to be done for or furnished to the state or a department, board, commission or officer of the state is exempt from the requirements of
ss. 16.705 and
16.75. The department shall attempt to ensure that 5% of the total amount expended under this section in each fiscal year is paid to minority businesses, as defined under
s. 16.75 (3m) (a).
16.87(3)
(3) Except as provided in
sub. (4), a contract under
sub. (2) is not valid or effectual for any purpose until it is endorsed in writing and approved by the secretary or the secretary's designated assistant and, if the contract involves an expenditure over $60,000, approved by the governor. Except as provided in
sub. (4), no payment or compensation for work done under any contract involving $2,500 or more, except a highway contract, may be made unless the written claim is audited and approved by the secretary or the secretary's designee. Any change order to a contract requiring approval under this subsection requires the prior approval by the secretary or the secretary's designated assistant and, if the change order involves an expenditure over $60,000, the approval of the governor.
16.87(4)
(4) This section does not apply to contracts by the department of natural resources for environmental consultant services or engineering services for hazardous substance spill response under
s. 292.11 or environmental repair under
s. 292.31, or for environmental consultant services to assist in the preparation of an environmental impact statement or to provide preapplication services under
s. 23.40.
16.875
16.875
Setoffs. All amounts owed by this state under this subchapter are subject to being set off under
s. 73.12.
16.875 History
History: 1985 a. 29.
16.88
16.88
Charges against projects. The cost of services furnished pursuant to
s. 16.85 (2) to
(4),
(6) and
(7) shall be charged to and paid out of available funds for the respective projects, whenever in the judgment of the secretary the charges are warranted and the cost of the services can be ascertained with reasonable accuracy.
16.89
16.89
Construction and services controlled by this chapter. No department, independent agency, constitutional office or agent of the state shall employ engineering, architectural or allied services or expend money for construction purposes on behalf of the state, except as provided in this chapter.
16.89 History
History: 1981 c. 390;
1983 a. 27.
16.895
16.895
State-owned or operated heating, cooling or power plants. 16.895(2)(a)
(a) Prepare all specifications, bid and administer contracts for the purchase of fuels for all state-owned or operated heating, cooling or power plants.
16.895(2)(b)
(b) Coordinate the state fuel and utility management program to maximize the economy of operations of the program.
16.895(2)(c)
(c) Determine the method of operation of state-owned or operated heating, cooling or power plants, including maintenance standards and policies concerning utilization of alternative fuels and energy conservation.
16.895(2)(d)
(d) Assure compliance with federal and state laws, federal regulations and state administrative rules applicable to state-owned or operated heating, cooling or power plants.
