66.0831 History
History: 1973 c. 277;
1983 a. 296,
538;
1993 a. 496;
1999 a. 150 s.
116; Stats. 1999 s. 66.0831.
66.0831 Annotation
Interference without written authority is prohibited only if the parties cannot agree that requested changes are reasonably necessary. A town sanitary district is not a town under the cost provision of this section. Wisconsin Gas Co. v. Lawrenz & Associates,
72 Wis. 2d 389,
241 N.W.2d 384 (1976).
PUBLIC WORKS AND PROJECTS
66.0901
66.0901
Public works, contracts, bids. 66.0901(1)(a)
(a) "Municipality" means the state or a town, city, village, school district, board of school directors, sewer district, drainage district, technical college district or other public or quasi-public corporation, officer, board or other public body charged with the duty of receiving bids for and awarding any public contracts.
66.0901(1)(b)
(b) "Person" means an individual, partnership, association, limited liability company, corporation or joint stock company, lessee, trustee or receiver.
66.0901(1)(bm)
(bm) "Political subdivision" means a city, village, town, or county.
66.0901(1)(c)
(c) "Public contract" means a contract for the construction, execution, repair, remodeling or improvement of a public work or building or for the furnishing of supplies or material of any kind, proposals for which are required to be advertised for by law.
66.0901(1)(d)
(d) "Subcontractor" means a person whose relationship to the principal contractor is substantially the same as to a part of the work as the latter's relationship is to the proprietor. A "subcontractor" takes a distinct part of the work in a way that the "subcontractor" does not contemplate doing merely personal service.
66.0901(1m)(a)(a) Except when necessary to secure federal aid, whenever a political subdivision lets a public contract by bidding, the political subdivision shall comply with all of the following:
66.0901(1m)(a)1.
1. The bidding shall be on the basis of sealed competitive bids.
66.0901(1m)(a)2.
2. The contract shall be awarded to the lowest responsible bidder.
66.0901(1m)(b)
(b) Except when necessary to secure federal aid, a political subdivision may not use a bidding method that gives preference based on the geographic location of the bidder or that uses criteria other than the lowest responsible bidder in awarding a contract.
66.0901(2)
(2) Bidder's proof of responsibility. A municipality intending to enter into a public contract may, before delivering any form for bid proposals, plans, and specifications to any person, except suppliers, and others not intending to submit a direct bid, require the person to submit a full and complete statement sworn to before an officer authorized by law to administer oaths. The statement shall consist of information relating to financial ability, equipment, experience in the work prescribed in the public contract, and other matters that the municipality requires for the protection and welfare of the public in the performance of a public contract. The statement shall be in writing on a standard form of a questionnaire that is adopted and furnished by the municipality. The statement shall be filed in the manner and place designated by the municipality. The statement shall not be received less than 5 days prior to the time set for the opening of bids. The contents of the statement shall be confidential and may not be disclosed except upon the written order of the person furnishing the statement, for necessary use by the public body in qualifying the person, or in cases of actions against, or by, the person or municipality. The governing body of the municipality or the committee, board, or employee charged with, or delegated by the governing body with, the duty of receiving bids and awarding contracts shall properly evaluate the statement and shall find the maker of the statement either qualified or unqualified.
66.0901(3)
(3) Proof of responsibility, condition precedent. No bid shall be received from any person who has not submitted the statement as provided in
sub. (2), provided that any prospective bidder who has once qualified to the satisfaction of the municipality, committee, board or employee, and who wishes to become a bidder upon subsequent public contracts under the same jurisdiction, need not separately qualify on each public contract unless required so to do by the municipality, committee, board or employee.
66.0901(4)
(4) Rejection of bids. If the municipality, committee, board or employee is not satisfied with the sufficiency of the answer contained in the statement provided under
sub. (2), the municipality, committee, board or employee may reject or disregard the bid.
66.0901(5)
(5) Corrections of errors in bids. If a person submits a bid or proposal for the performance of public work under any public contract to be let by a municipality and the bidder claims that a mistake, omission or error has been made in preparing the bid, the bidder shall, before the bids are opened, make known the fact that an error, omission or mistake has been made. If the bidder makes this fact known, the bid shall be returned to the bidder unopened and the bidder may not bid upon the public contract unless it is readvertised and relet upon the readvertisement. If a bidder makes an error, omission or mistake and discovers it after the bids are opened, the bidder shall immediately and without delay give written notice and make known the fact of the mistake, omission or error which has been committed and submit to the municipality clear and satisfactory evidence of the mistake, omission or error and that it was not caused by any careless act or omission on the bidder's part in the exercise of ordinary care in examining the plans or specifications and in conforming with the provisions of this section. If the discovery and notice of a mistake, omission or error causes a forfeiture, the bidder may not recover the moneys or certified check forfeited as liquidated damages unless it is proven before a court of competent jurisdiction in an action brought for the recovery of the amount forfeited, that in making the mistake, error or omission the bidder was free from carelessness, negligence or inexcusable neglect.
66.0901(6)
(6) Separation of contracts; classification of contractors. In public contracts for the construction, repair, remodeling or improvement of a public building or structure, other than highway structures and facilities, a municipality may bid projects based on a single or multiple division of the work. Public contracts shall be awarded according to the division of work selected for bidding. The municipality may set out in any public contract reasonable and lawful conditions as to the hours of labor, wages, residence, character and classification of workers to be employed by any contractor, classify contractors as to their financial responsibility, competency and ability to perform work and set up a classified list of contractors. The municipality may reject the bid of any person, if the person has not been classified for the kind or amount of work in the bid.
66.0901(7)
(7) Bidder's certificate. When bidding on a public contract, the bidder shall incorporate and make a part of the bidder's proposal for doing any work or labor or furnishing any material in or about any public work or contract of the municipality a sworn statement by the bidder, or if not an individual by one authorized, that the bidder or authorized person has examined and carefully prepared the proposal from the plans and specifications and has checked the same in detail before submitting the proposal or bid to the municipality. As a part of the proposal, the bidder also shall submit a list of the subcontractors the bidder proposes to contract with and the class of work to be performed by each. In order to qualify for inclusion in the bidder's list a subcontractor shall first submit a bid in writing, to the general contractor at least 48 hours prior to the time of the bid closing. The list may not be added to or altered without the written consent of the municipality. A proposal of a bidder is not invalid if any subcontractor and the class of work to be performed by the subcontractor has been omitted from a proposal; the omission shall be considered inadvertent or the bidder will perform the work personally.
66.0901(8)
(8) Settlement of disputes; defaults. Whenever there is a dispute between a contractor or surety or the municipality as to whether there is compliance with the provisions of a public contract as to the hours of labor, wages, residence, character and classification of workers employed by the contractor, the determination of the municipality is final. If a violation of these provisions occurs, the municipality may declare the contract in default and request the surety to perform or relet upon advertisement the remaining portion of the public contract.
66.0901(9)(a)(a) Notwithstanding
sub. (1) (a), in this subsection, "municipality" does not include the department of transportation.
66.0901(9)(b)
(b)
Retained percentages. As the work progresses under a contract involving $1,000 or more for the construction, execution, repair, remodeling or improvement of a public work or building or for the furnishing of supplies or materials, regardless of whether proposals for the contract are required to be advertised by law, the municipality, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work done, which entitles the contractor to receive the amount of the estimate, 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, further partial payments shall be made in full to the contractor and no additional amounts may be retained unless the architect or engineer certifies that the job is not proceeding satisfactorily, but amounts previously retained shall not be paid to the contractor. At 50% completion or any time after 50% completion when the progress of the work is not satisfactory, additional amounts may be retained but the total retainage may not 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. When the work has been substantially completed except for work which cannot be completed because of weather conditions, lack of materials or other reasons which in the judgment of the municipality are valid reasons for noncompletion, the municipality may make additional payments, retaining at all times an amount sufficient to cover the estimated cost of the work still to be completed or may pay out the entire amount retained and receive from the contractor guarantees in the form of a bond or other collateral sufficient to ensure completion of the job. For the purposes of this section, estimates may include any fabricated or manufactured materials and components specified, previously paid for by the contractor and delivered to the work or properly stored and suitable for incorporation in the work embraced in the contract.
66.0901(11)
(11) Limitation on performance of private construction work by political subdivisions. 66.0901(11)(a)(a) In this subsection, "construction project" means a road, sewer, water, stormwater, wastewater, grading, parking lot, or other infrastructure-related project or the provision of construction-related services for such a project.
66.0901(11)(b)
(b) A political subdivision may not use its own workforce to perform a construction project for which a private person is financially responsible.
66.0901 Annotation
Under sub. (5), a bidder has no right to withdraw its bid or demand that it be amended. Under the terms of the proposal, the commission was entitled to retain the deposit upon the plaintiff's failure to execute the contract within 10 days of the notice of award. Nelson Inc. v. Sewerage Commission of Milwaukee,
72 Wis. 2d 400,
241 N.W.2d 390 (1976).
66.0901 Annotation
Acceptance of the bid is a precondition to forfeiture of the bidder's deposit under sub. (5). Gaastra v. Village of Fairwater,
77 Wis. 2d 7,
252 N.W.2d 60 (1977).
66.0901 Annotation
When a bid error was discovered after the contract was let, the dispute was governed by the arbitration clause in the contract, not by sub. (5). Turtle Lake v. Orvedahl Const.,
135 Wis. 2d 385,
400 N.W.2d 475 (Ct. App. 1986).
66.0901 Annotation
Sub. (5) does not contemplate bid amendment after bids are open, and municipalities do not have the authority to permit a bidder to amend its bid. The only relief available to a bidder that acknowledges a mistake, error, or omission in its bid is to request that its bid be withdrawn from consideration. James Cape & Sons Company v. Mulcahy,
2005 WI 128,
285 Wis. 2d 200,
700 N.W.2d 243,
02-2817 66.0901 Annotation
Acceptance of a bid by a municipality is a precondition to forfeiture of a bidder's deposit under sub. (5). The 4th sentence of sub. (4) specifically contemplates a court proceeding to determine whether a proposal guaranty should be returned to the bidder when a municipality has retained the proposal guaranty. If the bidder can show by clear and satisfactory evidence that its error, omission, or mistake was not caused by any careless act or omission in the exercise of ordinary care in examining the plans or specifications and was in conformance with the conditions of the statute, but the municipality is able to show how the bidder's withdrawal has prejudiced or will prejudice the municipality, the bidder will have to meet the higher standard that it was free from carelessness, negligence, or inexcusable neglect to avoid forfeiture. James Cape & Sons Company v. Mulcahy,
2005 WI 128,
285 Wis. 2d 200,
700 N.W.2d 243,
02-2817 66.0901 Annotation
A municipality has no power to enter into a contract unless the bid proposal complies with sub. (7). When a bidder submitted no statement providing any of the assurances required by sub. (7) the bid proposal did not comply with sub. (7), and the municipality had no authority to enter into a contract with the bidder based on that proposal. If there was a contract, it was void at its inception. Andrews Construction, Inc. v. Town of Levis,
2006 WI App 180,
296 Wis. 2d 89,
722 N.W. 2d 389,
04-3338.
66.0901 Annotation
Police cars need not be purchased by competitive bid since they are "equipment" and not "supplies [or] material." 66 Atty. Gen. 284.
66.0901 Annotation
Municipalities may require bidders to include a list of subcontractors under sub. (7). Counties may reject a proposal for failure to include a complete list, except when omitted subcontractors themselves submitted timely, written bids to the general contractor.
76 Atty. Gen. 29.
66.0903
66.0903
Municipal prevailing wage and hour scales. 66.0903(1)(a)
(a) "Area" means the county in which a proposed project of public works that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, "area" means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, "area" means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, "area" means the entire state or, if the department is requested to review a determination under
sub. (3) (br), "area" means the city, village or town in which a proposed project of public works that is subject to this section is located.
66.0903(1)(b)
(b) "Department" means the department of workforce development.
66.0903(1)(d)
(d) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
66.0903(1)(dr)
(dr) "Minor service or maintenance work" means a project of public works that is limited to minor crack filling, chip or slurry sealing, or other minor pavement patching, not including overlays, that has a projected life span of no longer than 5 years or that is performed for a town and is not funded under
s. 86.31, regardless of projected life span; the depositing of gravel on an existing gravel road applied solely to maintain the road; road shoulder maintenance; cleaning of drainage or sewer ditches or structures; or any other limited, minor work on public facilities or equipment that is routinely performed to prevent breakdown or deterioration.
66.0903(1)(g)1.1. Except as provided in
subd. 2., "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the hourly basic rate of pay, plus the hourly contribution for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly, for a majority of the hours worked in the trade or occupation on projects in the area.
66.0903(1)(g)2.
2. If there is no rate at which a majority of the hours worked in the trade or occupation on projects in the area is paid, "prevailing wage rate" for any trade or occupation engaged in the erection, construction, remodeling, repairing or demolition of any project of public works in any area means the average hourly basic rate of pay, weighted by the number of hours worked, plus the average hourly contribution, weighted by the number of hours worked, for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefit, paid directly or indirectly for all hours worked at the hourly basic rate of pay of the highest-paid 51% of hours worked in that trade or occupation on projects in that area.
66.0903(1)(im)
(im) "Supply and installation contract" means a contract under which the material is installed by the supplier, the material is installed by means of simple fasteners or connectors such as screws or nuts and bolts and no other work is performed on the site of the project of public works, and the total labor cost to install the material does not exceed 20 percent of the total cost of the contract.
66.0903(1m)(a)(a) In this subsection, "publicly funded private construction project" means a construction project in which the developer, investor, or owner of the project receives direct financial assistance from a local governmental unit for the erection, construction, repair, remodeling, demolition, including any alteration, painting, decorating, or grading, of a private facility, including land, a building, or other infrastructure. "Publicly funded private construction project" does not include a project of public works or a housing project involving the erection, construction, repair, remodeling, or demolition of any of the following:
66.0903(1m)(a)1.
1. A residential property, if the project is supported by affordable housing grants, home improvement grants, or grants from a local housing trust fund.
66.0903(1m)(a)3.
3. A residential property that contains retail, office, or commercial components, if the project is intended to increase the supply of affordable housing in a community.
66.0903(1m)(b)
(b) The legislature finds that the enactment of ordinances or other enactments by local governmental units requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor would be logically inconsistent with, would defeat the purpose of, and would go against the spirit of this section and the repeal of s.
66.0904, 2009 stats. Therefore, this section shall be construed as an enactment of statewide concern for the purpose of providing uniform prevailing wage rate and prevailing hours of labor requirements throughout the state.
66.0903(1m)(c)
(c) A local governmental unit may not enact and administer an ordinance or other enactment requiring laborers, workers, mechanics, and truck drivers employed on projects of public works or on publicly funded private construction projects to be paid the prevailing wage rate and to be paid at least 1.5 times their hourly basic rate of pay for hours worked in excess of the prevailing hours of labor or any similar ordinance or enactment. Any such ordinance or other enactment that is in effect on July 1, 2011, is void.
66.0903(2)
(2) Applicability. Subject to
sub. (5), this section applies to any project of public works erected, constructed, repaired, remodeled, or demolished for a local governmental unit, including all of the following:
66.0903(2)(a)
(a) A highway, street, bridge, building, or other infrastructure project.
66.0903(2)(b)
(b) A project erected, constructed, repaired, remodeled, or demolished by one local governmental unit for another local governmental unit under a contract under
s. 66.0301 (2),
83.03,
83.035, or
86.31 (2) (b) or under any other statute specifically authorizing cooperation between local governmental units.
66.0903(2)(c)
(c) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, a local governmental unit in lieu of the local governmental unit contracting for the erection, construction, repair, remodeling, or demolition of the facility.
66.0903(2)(d)
(d) A road, street, bridge, sanitary sewer, or water main project in which the completed road, street, bridge, sanitary sewer, or water main is acquired by, or dedicated to, a local governmental unit, including under
s. 236.13 (2), for ownership or maintenance by the local governmental unit.
66.0903(3)
(3) Prevailing wage rates and hours of labor. 66.0903(3)(am)(am) A local governmental unit, before making a contract by direct negotiation or soliciting bids on a contract for the erection, construction, remodeling, repairing or demolition of any project of public works, shall apply to the department to determine the prevailing wage rate for each trade or occupation required in the work contemplated. The department shall conduct investigations and hold public hearings as necessary to define the trades or occupations that are commonly employed on projects of public works that are subject to this section and to inform itself as to the prevailing wage rates in all areas of the state for those trades or occupations, in order to determine the prevailing wage rate for each trade or occupation. The department shall issue its determination within 30 days after receiving the request and shall file the determination with the requesting local governmental unit.
66.0903(3)(ar)
(ar) The department shall, by January 1 of each year, compile the prevailing wage rates for each trade or occupation in each area. The compilation shall, in addition to the current prevailing wage rates, include future prevailing wage rates when those prevailing wage rates can be determined for any trade or occupation in any area and shall specify the effective date of those future prevailing wage rates. If a project of public works extends into more than one area there shall be but one standard of prevailing wage rates for the entire project.
66.0903(3)(av)
(av) In determining prevailing wage rates under
par. (am) or
(ar), the department may not use data from projects that are subject to this section,
s. 103.49 or
103.50, or
40 USC 3142 unless the department determines that there is insufficient wage data in the area to determine those prevailing wage rates, in which case the department may use data from projects that are subject to this section,
s. 103.49 or
103.50, or
40 USC 3142. In determining prevailing wage rates under
par. (am) or
(ar), the department may not use data from any construction work that is performed by a local governmental unit or a state agency.
66.0903(3)(bm)
(bm) Any person may request a recalculation of any portion of an initial determination within 30 days after the initial determination date if the person submits evidence with the request showing that the prevailing wage rate for any given trade or occupation included in the initial determination does not represent the prevailing wage rate for that trade or occupation in the area. The evidence shall include wage rate information reflecting work performed by persons working in the contested trade or occupation in the area during the current survey period. The department shall affirm or modify the initial determination within 15 days after the date on which the department receives the request for recalculation.
66.0903(3)(br)
(br) In addition to the recalculation under
par. (bm), the local governmental unit that requested the determination under this subsection may request a review of any portion of a determination within 30 days after the date of issuance of the determination if the local governmental unit submits evidence with the request showing that the prevailing wage rate for any given trade or occupation included in the determination does not represent the prevailing wage rate for that trade or occupation in the city, village, or town in which the proposed project of public works is located. That evidence shall include wage rate information for the contested trade or occupation on at least 3 similar projects located in the city, village, or town where the proposed project of public works is located and on which some work has been performed during the current survey period and which were considered by the department in issuing its most recent compilation under
par. (ar). The department shall affirm or modify the determination within 15 days after the date on which the department receives the request for review.
66.0903(3)(dm)
(dm) A reference to the prevailing wage rates determined by the department and to the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for the project of public works. If any contract or subcontract for a project of public works is entered into, the prevailing wage rates determined by the department and the prevailing hours of labor shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, as determined by the department, the department shall prescribe by rule the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. No person performing the work described in
sub. (4) may be paid less than the prevailing wage rate in the same or most similar trade or occupation determined under this subsection; nor may he or she be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay.
66.0903(4)(a)(a) Subject to
par. (b), all of the following employees shall be paid the prevailing wage rate determined under
sub. (3) and may not be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay:
66.0903(4)(a)1.
1. All laborers, workers, mechanics, and truck drivers employed on the site of a project of public works that is subject to this section.
66.0903(4)(a)2.
2. All laborers, workers, mechanics, and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies, or equipment on the site of a project of public works that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project of public works that is subject to this section by a contractor, subcontractor, agent, or other person performing any work on the site of the project.
66.0903(4)(b)
(b) A laborer, worker, mechanic, or truck driver who is employed to process, manufacture, pick up, or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment supplies processed or manufactured materials or products or from a facility that is not dedicated exclusively, or nearly so, to a project of public works that is subject to this section is not entitled to receive the prevailing wage rate determined under
sub. (3) or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor unless any of the following applies:
66.0903(4)(b)1.
1. The laborer, worker, mechanic, or truck driver is employed to go to the source of mineral aggregate such as sand, gravel, or stone and deliver that mineral aggregate to the site of a project of public works that is subject to this section by depositing the material directly in final place, from the transporting vehicle or through spreaders from the transporting vehicle.
66.0903(4)(b)2.
2. The laborer, worker, mechanic, or truck driver is employed to go to the site of a project of public works that is subject to this section, pick up excavated material or spoil from the site of the project, and transport that excavated material or spoil away from the site of the project.
66.0903(4)(c)
(c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck.
66.0903(5)
(5) Nonapplicability. This section does not apply to any of the following:
66.0903(5)(a)
(a) A single-trade project of public works for which the estimated project cost of completion is less than $48,000, a multiple-trade project of public works for which the estimated project cost of completion is less than $100,000, or, in the case of a multiple-trade project of public works erected, constructed, repaired, remodeled, or demolished by a private contractor for a city or village having a population of less than 2,500 or for a town, a multiple-trade project of public works for which the estimated project cost of completion is less than $234,000.
66.0903(5)(b)
(b) Work performed on a project of public works for which the local governmental unit contracting for the project is not required to compensate any contractor, subcontractor, contractor's or subcontractor's agent, or individual for performing the work.
66.0903(5)(c)
(c) Minor service or maintenance work, warranty work, or work under a supply and installation contract.
66.0903(5)(f)
(f) A project of public works involving the erection, construction, repair, remodeling, or demolition of a residential property containing 2 dwelling units or less.
66.0903(5)(g)
(g) A road, street, bridge, sanitary sewer, or water main project that is a part of a development in which not less than 90 percent of the lots contain or will contain 2 dwelling units or less, as determined by the local governmental unit at the time of approval of the development, and that, on completion, is acquired by, or dedicated to, a local governmental unit, including under
s. 236.13 (2), for ownership or maintenance by the local governmental unit.
