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. This paragraph does not apply to procurements under
s. 16.751.
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)1.
1. “Disabled veteran-owned business" means a business certified by the department of administration under
s. 16.283 (3).
16.75(3m)(a)2.
2. “Disabled veteran-owned financial adviser" means a financial adviser certified by the department of administration under
s. 16.283 (3).
16.75(3m)(a)3.
3. “Disabled veteran-owned investment firm" means an investment firm certified by the department of administration under
s. 16.283 (3).
16.75(3m)(a)4.
4. “Minority business" means a business certified by the department of administration under
s. 16.287 (2).
16.75(3m)(b)1.1. The department, any agency to which the department delegates purchasing authority under
s. 16.71 (1), and any agency making purchases under
s. 16.74 shall attempt to ensure that 5 percent of the total amount expended under this subchapter in each fiscal year is paid to minority businesses.
16.75(3m)(b)2.
2. The department, any agency to which the department delegates purchasing authority under
s. 16.71 (1), and any agency making purchases under
s. 16.74 shall attempt to ensure that at least 1 percent of the total amount expended under this subchapter in each fiscal year is paid to disabled veteran-owned businesses.
16.75(3m)(b)3.
3. Except as provided under
sub. (7), the department, any agency to which the department delegates purchasing authority under
s. 16.71 (1), and any agency making purchases under
s. 16.74 may purchase materials, supplies, equipment, and contractual services from any minority business or disabled veteran-owned business, or a business that is both a minority business and a disabled veteran-owned business, submitting a qualified responsible competitive bid that is no more than 5 percent higher than the apparent low bid or competitive proposal that is no more than 5 percent higher than the most advantageous proposal. In administering the preference for minority businesses or disabled veteran-owned businesses established in this paragraph, the department, the delegated agency, and any agency making purchases under
s. 16.74 shall maximize the use of minority businesses or disabled veteran-owned 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 and any amount of the contract that was subcontracted to disabled veteran-owned 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, all of the following for the reporting period specified by the department:
16.75(3m)(c)2.a.
a. The total amount of money it has expended for contracts and orders awarded to minority businesses.
16.75(3m)(c)2.b.
b. The total amount of money and the percentage of the total amount of money it has expended for contracts and orders awarded to disabled veteran-owned businesses.
16.75(3m)(c)2.c.
c. The number of contacts with minority businesses in connection with proposed purchases.
16.75(3m)(c)2.d.
d. The number of contacts with disabled veteran-owned 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 and on state purchases from disabled veteran-owned businesses, including amounts expended and the percentage of total expenditures awarded to minority businesses and amounts expended and the percentage of total expenditures awarded to disabled veteran-owned 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 the amount of indebtedness or other obligations underwritten by minority businesses, minority financial advisers, minority investment firms, disabled veteran-owned businesses, disabled veteran-owned financial advisers, and disabled veteran-owned 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) (am) and
(10n),
16.87 (2),
25.185, and
84.075 (1m). The report shall also include the percentage of the total amount of money paid to and the percentage of the total amount of indebtedness or other obligations underwritten by disabled veteran-owned businesses, disabled veteran-owned financial advisers, and disabled veteran-owned investment firms. In calculating the percentages to be reported under this subsection, the department shall exclude any purchase or contract for which a preference would violate any federal law or regulation or any contract between an agency and a federal agency or any contract that would result in a reduction in the amount of federal aids received by this state.
16.75(3m)(c)5.b.
b. In determining whether a purchase, contract, or subcontract is made with a disabled veteran-owned business, the department shall include only amounts paid to disabled veteran-owned businesses certified by the department of administration under
s. 16.283 (3).
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). Except as otherwise provided in
sub. (6) (am), 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 that is comparable to one which may be obtained through competitive bidding or competitive sealed proposals and is able to conform to the specifications. If the department of administration or other purchasing agent is unable to determine whether the price of prison industries is comparable to one obtained through competitive bidding or competitive sealed proposals, 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)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(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 safety and professional services 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 percent owned by one or more veterans, as defined in
s. 45.01 (12).
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)
(am) Subsections (1) and
(3t) do not apply to procurements by the department relating to information technology or telecommunications. Annually not later than October 1, the department shall report to the governor, in the form specified by the governor, concerning all procurements relating to information technology or telecommunications by the department during the preceding fiscal year that were not made in accordance with the requirements of
subs. (1) and
(3t).
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 (1) and
(2) to
(8) and
16.72 (2) (e) and
(f) and
(5) with respect to any contract entered into by the department of children and families under
s. 49.143, if the department of children and families 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 first publish a class 2 notice under
ch. 985 or post a notice on the Internet at the site determined or approved by the department under
sub. (1) (b) 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 of the award shall be at least 7 days after the date of the last insertion or the date of posting on the Internet.
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, except
s. 16.705 (1r), 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)(am)(am) 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 and the Lower Fox River Remediation 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)(bm)
(bm) Each agency and authority other than the University of Wisconsin Hospitals and Clinics Authority and the Lower Fox River Remediation 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 40 percent of all purchased paper.
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 and the Lower Fox River Remediation 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(10e)(a)(a) In this subsection, “energy consuming equipment" means any equipment that is designed for heating, ventilation, air conditioning, water heating or cooling, lighting, refrigeration, or any other function, and that consumes energy.
16.75(10e)(b)
(b) If
s. 16.855 (10s) (a) provides an applicable standard for the type of energy consuming equipment being purchased and the purchase will cost more than $5,000 per unit the department, any other designated purchasing agent under
s. 16.71 (1), any agency making purchases under
s. 16.74, and any authority may not purchase that type of energy consuming equipment unless the specifications for the equipment meet the applicable standards. If there is an applicable standard under
s. 16.855 (10s) (a), but the energy consuming equipment meeting that standard is not reasonably available, the department, purchasing agent, agency, or authority shall ensure, for purchases over $5,000 per unit, that the energy consuming equipment that is purchased maximizes energy efficiency to the extent technically and economically feasible. The department, purchasing agent, agency, or authority shall not determine that energy consuming equipment that meets the applicable standard under
s. 16.855 (10s) (a) either is not reasonably available on the basis of cost alone or is not cost-effective unless the difference in the cost of the purchase and installation of the equipment that meets the standard and the equipment that would otherwise be installed is greater than the difference in the cost of operating the equipment that meets the standard and the equipment that would otherwise be installed over the anticipated life of the equipment.
16.75(10m)
(10m) The department, any other designated purchasing agent under
s. 16.71 (1), any agency making purchases under
s. 16.74, and any authority shall not enter into any contract or order for the purchase of materials, supplies, equipment, or contractual services with a person if the name of the person, or the name of an affiliate of that person, is certified to the department by the secretary of revenue under
s. 77.66.
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(12)(a)1.
1. “Agency" means the department of administration, the department of corrections, the department of health services, the department of public instruction, the department of veterans affairs, and the Board of Regents of the University of Wisconsin System.
16.75(12)(a)2.
2. “Agency facility" means any state-owned or leased facility that is occupied, operated, or used by an agency.
16.75(12)(a)3.
3. “Renewable percentage" means the percentage of total annual electric energy that is derived from renewable resources.
16.75(12)(a)5.
5. “Total annual electric energy" means the total annual amount of electric energy generated or purchased by the state for power, heating, or cooling purposes for all agency facilities.
16.75(12)(b)
(b) The department shall establish goals for each agency that are designed to accomplish the following goals:
16.75(12)(b)1.
1. That the renewable percentage for total annual electric energy by December 31, 2007, is at least 10 percent.
16.75(12)(b)2.
2. That the renewable percentage for total annual electric energy by December 31, 2011, is at least 20 percent.
16.75(12)(c)
(c) In determining whether the goals under
par. (b) are accomplished, the department shall do all the following:
16.75(12)(c)1.
1. Calculate total annual electric energy on the basis of an average of the total annual electric energy during the 3 years prior to the specified dates.
16.75(12)(c)2.
2. For any individual agency facility, consider only electric energy that is purchased from the electric provider that serves the agency facility under an arrangement with a term of 10 years or more and electric energy derived from renewable resources owned by the state and produced for use in the agency facility.
16.75(12)(d)
(d) Notwithstanding
par. (b), an agency is not required to generate or purchase electric energy derived from renewable resources if the generation or purchase is not technically feasible or cost-effective.
16.75(12)(e)
(e) No later than March 1 of each year, the department shall submit a report to the governor and chief clerk of each house of the legislature, for distribution to the legislature under
s. 13.172 (2), concerning the degree of attainment and, if applicable, reasons for nonattainment by the state during the preceding year in meeting the goals established by the department under
par. (b).
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;
1997 a. 3;
1999 a. 9,
44,
197;
2001 a. 16,
38;
2003 a. 33;
2005 a. 22,
25,
74,
141,
335;
2007 a. 20 ss.
102 to
103h,
9121 (6) (a);
2007 a. 97;
2009 a. 136,
180,
299;
2011 a. 32;
2011 a. 260 ss.
80,
81;
2013 a. 20,
166,
192;
2015 a. 55,
195.
16.75 Cross-reference
Cross-reference: See also ch.
Adm 10, Wis. adm. code.
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 proper standard for determining whether the department of administration has abused its discretion in setting a bidding requirement is whether its decision was arbitrary or unreasonable. The department is not required to hold a hearing or follow any specified procedure in adopting bid requirements. Glacier State Distribution Services, Inc. v. DOT,
221 Wis. 2d 359,
585 N.W.2d 652 (Ct. App. 1998),
97-2472.
16.75 Annotation
Procuring statutes and regulations, such as Adm Ch. 10, Wis. Adm. Code, are designed to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to ensure that the public receives the best work at the most reasonable price practicable. As such, these regulations are intended for the benefit and protection of the public and not of the individual bidder. PRN Associates LLC v. DOA,
2009 WI 53,
317 Wis. 2d 656,
766 N.W.2d 559,
07-0476.
16.75 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.
