16.855(14m)(a)(a) Any contract entered into between a general prime contractor and a subcontractor under
sub. (14) (e) must contain all of the following clauses:
Prompt Payment. (General prime contractor) shall pay (mechanical, electrical, or plumbing subcontractor) in accordance with section 16.855 (19) (b), Wisconsin stats., for work that has been satisfactorily completed and properly invoiced by (mechanical, electrical, or plumbing subcontractor). A payment is timely if it is mailed, delivered, or transferred to (mechanical, electrical, or plumbing subcontractor) by the deadline under section 16.855 (19) (b), Wisconsin stats.
If (mechanical, electrical, or plumbing subcontractor) is not paid by the deadline in this contract, (general prime contractor) shall pay interest on the balance due from the eighth day after the (general prime contractor) receives payment from the (Department of Administration or Board of Regents) for the work for which payment is due and owing to (mechanical, electrical, or plumbing subcontractor), at the rate specified in section 71.82, Wisconsin stats., compounded monthly.
A (mechanical, electrical, or plumbing subcontractor) that receives payment as provided under this contract and that subcontracts with another entity shall pay those subcontractors, and be liable for interest on late payments to those subcontractors, in the same manner as (general prime contractor) is required to pay (mechanical, electrical, or plumbing subcontractor) under this contract.
Insurance and Bonds. (Mechanical, electrical, or plumbing subcontractor) shall not commence work under this contract until it has obtained all necessary insurance required of (mechanical, electrical, or plumbing subcontractor) in the contract between the (general prime contractor) and the (Department of Administration or Board of Regents).
(Mechanical, electrical, or plumbing subcontractor) shall provide a separate 100 percent performance bond and a separate 100 percent payment bond to the benefit of the (general prime contractor) as the sole named obligee. Original bonds shall be given to the (general prime contractor) and a copy shall be given to the (Department of Administration or Board of Regents) no later than 10 days after execution of this contract.
Indemnification. To the fullest extent permitted by law, (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others whom (general prime contractor) is required to indemnify under its contract with the (Department of Administration or Board of Regents), and the employees of any of them, from and against claims, damages, fines, penalties, losses, and expenses, including but not limited to attorney fees, arising in any way out of or resulting from the performance of the work under this contract, but only to the extent such claim, damage, fine, penalty, loss, or expense: (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of property, including but not limited to loss of use resulting therefrom and is caused by the negligence, or acts or omissions, of (mechanical, electrical, or plumbing subcontractor), its subcontractors, any of their employees, and anyone directly or indirectly employed by them or anyone for whose acts they may be liable, or (2) as related to such claims, damages, fines, penalties, losses, and expense of or against (general prime contractor), results from or arises out of the negligence of (general prime contractor) or other fault in providing general supervision or oversight of the work of (mechanical, electrical, or plumbing subcontractor) or (3) as related to claims, damages, fines, penalties, losses, and expense against the (Department of Administration or Board of Regents), arises out of the (department's or board's) status as owner of the project or project site.
In addition (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others (general prime contractor) is required to indemnify under its contract with the (Department of Administration or Board of Regents), and the employees of any of them, from any liability, including liability resulting from a violation of any applicable safe place act, that (general prime contractor) or the state incurs to any employee of (mechanical, electrical, or plumbing subcontractor) or any third party where the liability arises from a derivative claim from said employee, when the liability arises out of the failure of the (general prime contractor) or the state to properly supervise, inspect, or approve the work or work area of (mechanical, electrical, or plumbing subcontractor), but only to the extent that the liability arises out of the acts or omissions of (mechanical, electrical, or plumbing subcontractor), its employees, or anyone for whom (mechanical, electrical, or plumbing subcontractor) may be liable, or from (mechanical, electrical, or plumbing subcontractor's) breach of its contractual responsibilities or arises out of (general prime contractor's) negligence or other fault in providing general supervision or oversight of (mechanical, electrical, or plumbing subcontractor's) work or arises out of the (Department of Administration's or Board of Regents') status as owner of the project or project site. In claims against (general prime contractor) or the state by an employee of (mechanical, electrical, or plumbing subcontractor) or its subcontractors or anyone for whose acts (mechanical, electrical, or plumbing subcontractor) may be liable, the indemnification obligation of this paragraph is not limited by a limitation on amount or type of damage, compensation, or other benefits payable by or for the (mechanical, electrical, or plumbing subcontractor) or its subcontractors under workers' compensation act.
Except as identified above, the obligations of (mechanical, electrical, or plumbing subcontractor) under this indemnification do not extend to the liability of (general prime contractor) and its agents or employees arising out of (1) preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs, or specifications; (2) the giving of or failure to give directions or instructions by the (general prime contractor) or the (Department of Administration or Board of Regents) or their agents or employees provided the giving or failure to give is the cause of the injury or damage; or (3) the acts or omissions of other subcontractors.
Retainage. Retainage shall occur and be in amounts and on a schedule equal to that in the contract between (general prime contractor) and the (Department of Administration or Board of Regents).
16.855(14m)(b)
(b) A contract entered into under
sub. (14) (e) between a general prime contractor and a mechanical, electrical, or plumbing subcontractor must include a scope of work clause that is identical to the scope of work clause on which the mechanical, electrical, or plumbing subcontractor bid under
sub. (13).
16.855(14m)(c)1.1. Except as provided in
subd. 2., a general prime contractor and a mechanical, electrical, or plumbing subcontractor may not enter any agreement other than the contract entered into under
sub. (14) (e) if the agreement is in connection with bids submitted under
sub. (13) or
(14) that would alter or affect the scope or price of the contract entered into under
sub. (13) or
(14) (e).
16.855(14m)(c)2.
2. The prohibition under
subd. 1. does not apply to change orders by the department or the Board of Regents that result in changes to the plans or specifications or to back charges allowed by the contract under
sub. (13).
16.855(14m)(d)
(d) The general prime contractor shall base its project schedule on the schedule in the specifications or bid instructions under
sub. (2) (a) unless otherwise agreed to by the mechanical, electrical, or plumbing subcontractor.
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 of a building, structure, or facility in lieu of building commission approval under
s. 13.48 (10), and for such purposes, may authorize the expenditure of up to $500,000 from the state building trust fund or from other available moneys appropriated to an agency derived from any revenue source. The governor may delegate to the secretary the authority to grant approvals under this subdivision. The governor shall report any such authorization to the building commission at its next regular meeting following the authorization. In this subdivision, “emergency" means any natural or human-caused situation that results in or may result in substantial injury or harm to the population or substantial damage to or loss of property.
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 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)(a)(a) As the work progresses under any contract for construction of a project the department, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work properly completed, which shall entitle the contractor to receive the amount, less the retainage, from the proper fund. The retainage shall be an amount equal to not more than 5 percent of the estimate until 50 percent of the work has been completed. At 50 percent completion, no additional amounts shall be retained, and partial payments shall be made in full to the contractor unless the department certifies that the job is not proceeding satisfactorily. At 50 percent 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 percent of the value of the work completed. Upon substantial completion of the work, any amount retained shall be paid to the contractor, less the value of any required corrective work or uncompleted work. 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.
16.855(19)(b)
(b) As the work progresses under any subcontract under
sub. (14) (e) for construction of a project, the general prime contractor shall, upon request of a subcontractor, pay to the subcontractor an amount equal to the proportionate value of the subcontractor's work properly completed, less retainage. The retainage shall be an amount equal to not more than 5 percent of the subcontractor's work completed until 50 percent of the subcontractor's work has been completed. At 50 percent completion, no additional amounts may be retained, and partial payments shall be made in full to the subcontractor unless the department or the Board of Regents certifies that the subcontractor's work is not proceeding satisfactorily. At 50 percent completion or any time thereafter when the progress of the subcontractor's work is not satisfactory, additional amounts may be retained but the total retainage may not be more than 10 percent of the value of the work completed. Upon substantial completion of the subcontractor's work, any amount retained shall be paid to the subcontractor, less the value of any required corrective work or uncompleted work. All payments the general prime contractor makes under this paragraph shall be within 7 calendar days after the date on which the general prime contractor receives payment from the department or board.
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, except projects specified in
s. 13.48 (10) (c).
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 that does not require the prior approval of the building commission under
s. 13.48 (10) (a) 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, other than a project exempted under
sub. (12m) or (24), is at least $50,000, 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 Note
NOTE: The creation of s. 16.855 (24) by
2015 Wis. Act 55 was removed from Act 55 by the governor's partial veto.
16.855 History
History: 1971 c. 125;
1973 c. 47;
1975 c. 39,
199,
390;
1977 c. 418;
1979 c. 34;
1981 c. 20;
1983 a. 27 ss.
104g to
105,
2202 (1);
1983 a. 390 s.
6;
1985 a. 29;
1985 a. 332 s.
251 (1);
1987 a. 27,
292;
1989 a. 31;
1991 a. 39,
316;
1995 a. 27 ss.
400p,
9126 (19);
1995 a. 227;
1997 a. 27,
306;
1999 a. 150 s.
672;
1999 a. 197;
2001 a. 103;
2003 a. 33,
157;
2005 a. 141,
391;
2007 a. 20 s.
9121 (6) (a);
2009 a. 299;
2011 a. 32;
2011 a. 260 s.
80;
2013 a. 20,
192;
2015 a. 55.
16.855 Cross-reference
Cross-reference: See also chs.
Adm 21 and
24, Wis. adm. code.
16.855 Annotation
Under subs. (2) (a) 2. and (14), 1979 stats., 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
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.
16.856
16.856
Prevailing wage. 16.856(1)(a)
(a) “Bona fide economic benefit" means an economic benefit for which an employer makes irrevocable contributions to a trust or fund created under
29 USC 186 (c) or to any other bona fide plan, trust, program, or fund no less often than quarterly or, if an employer makes annual contributions to such a bona fide plan, trust, program, or fund, for which the employer irrevocably escrows moneys at least quarterly based on the employer's expected annual contribution.
16.856(1)(b)
(b) “Hourly basic rate of pay" means the hourly wage paid to any employee, excluding any contributions or payments for health insurance benefits, vacation benefits, pension benefits and any other bona fide economic benefits, whether paid directly or indirectly.
16.856(1)(c)
(c) “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 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.
16.856(1)(d)
(d) “Multiple-trade project of public works" means a project of public works in which no single trade accounts for 85 percent or more of the total labor cost of the project.
16.856(1)(e)
(e) “Prevailing hours of labor" for any trade or occupation in any area means 10 hours per day and 40 hours per week and may not include any hours worked on a Saturday or Sunday or on any of the following holidays:
16.856(1)(e)7.
7. The day before if January 1, July 4 or December 25 falls on a Saturday.
16.856(1)(e)8.
8. The day following if January 1, July 4 or December 25 falls on a Sunday.
16.856(1)(f)
(f) “Prevailing wage rate" means the applicable prevailing wage rate for an area, as determined by the U.S. department of labor under
40 USC 3142.
16.856(1)(g)
(g) “Single-trade project of public works" means a project of public works in which a single trade accounts for 85 percent or more of the total labor cost of the project.
16.856(1)(h)
(h) “State agency" means any 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, including the legislature and the courts. “State agency" also includes the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, and the Wisconsin Aerospace Authority.
16.856(1)(i)
(i) “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.
16.856(1)(j)
(j) “Truck driver" includes an owner-operator of a truck.
16.856(1m)
(1m) Applicability. Subject to
sub. (3g), this section applies to any project of public works erected, constructed, repaired, remodeled, or demolished for the state or a state agency, including all of the following:
16.856(1m)(a)
(a) A project erected, constructed, repaired, remodeled, or demolished by one state agency for another state agency under any contract or under any statute specifically authorizing cooperation between state agencies.
16.856(1m)(b)
(b) A project in which the completed facility is leased, purchased, lease purchased, or otherwise acquired by, or dedicated to, the state in lieu of the state or a state agency contracting for the erection, construction, repair, remodeling, or demolition of the facility.
16.856(1m)(c)
(c) A “sanitary sewer" or water main project in which the completed sanitary sewer or water main is acquired by, or dedicated to, the state for ownership or maintenance by the state.
16.856(2)
(2) Prevailing wage rates and hours of labor. Any contract made for the erection, construction, remodeling, repairing, or demolition of any project of public works to which the state or any state agency is a party shall contain a stipulation that no person performing the work described in
sub. (2m) may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per week if 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; nor may he or she be paid less than the prevailing wage rate in the same or most similar trade or occupation in the area in which the project of public works is situated. A reference to the prevailing wage rates and the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for the project. If any contract or subcontract for a project of public works that is subject to this section is entered into, the prevailing wage rates 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.
16.856(2m)(a)(a) Subject to
par. (b), all of the following employees shall be paid the prevailing wage rate 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:
16.856(2m)(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.
16.856(2m)(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.
16.856(2m)(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, including any of the following, is not entitled to receive the prevailing wage rate 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:
16.856(2m)(b)1.
1. A laborer, worker, mechanic, or truck driver who 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.
16.856(2m)(b)2.
2. A laborer, worker, mechanic, or truck driver who is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project of public works, and transport that excavated material or spoil away from the site of the project.
16.856(2m)(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.
16.856(3g)
(3g) Nonapplicability. This section does not apply to any of the following:
16.856(3g)(a)
(a) A single-trade project of public works for which the estimated project cost of completion is less than $48,000 or a multiple-trade project of public works for which the estimated project cost of completion is less than $100,000.
16.856(3g)(b)
(b) Work performed on a project of public works for which the state or the state agency contracting for the project is not required to compensate any contractor, subcontractor, contractor's or subcontractor's agent, or individual for performing the work.
16.856(3g)(c)
(c) Minor service or maintenance work, warranty work, or work under a supply and installation contract.
16.856(3g)(g)
(g) A project of public works involving the erection, construction, repair, remodeling, or demolition of a residential property containing 2 dwelling units or less.
16.856(3g)(h)
(h) 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, the state for ownership or maintenance by the state.
16.856(5)
(5) Disclosure. If a person who is not an employee of the department or the contracting state agency or who is not an employee of the department of workforce development conducting an investigation under
s. 109.09 contacts an employee performing the work described in
sub. (2m) for the purpose of investigating compliance with this section, the person shall provide a written statement to the employee stating that the person is not affiliated with the department, the contracting state agency, or the department of workforce development and disclosing the principal source of funding for the investigation.
16.856(6m)(ag)1.1. Any contractor, subcontractor, or contractor's or subcontractor's agent who fails to pay the prevailing wage rate or who pays less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor is liable to any affected employee in the amount of his or her unpaid wages or his or her unpaid overtime compensation as provided in
subd. 2. or
3., whichever is applicable.
16.856(6m)(ag)2.
2. If the department determines that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the department shall order the contractor to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation within a period specified by the department in the order.
16.856(6m)(ag)3.
3. In addition to or in lieu of recovering the liability specified in
subd. 1. as provided in
subd. 2., any employee for and in behalf of that employee and other employees similarly situated may commence an action to recover that liability in any court of competent jurisdiction. If the court finds that a contractor, subcontractor, or contractor's or subcontractor's agent has failed to pay the prevailing wage rate or has paid less than 1.5 times the hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor, the court shall order the contractor, subcontractor, or agent to pay to any affected employee the amount of his or her unpaid wages or his or her unpaid overtime compensation.
16.856(6m)(ag)5.
5. No employee may be a party plaintiff to an action under
subd. 3. unless the employee consents in writing to become a party and the consent is filed in the court in which the action is brought. Notwithstanding
s. 814.04 (1), the court shall, in addition to any judgment awarded to the plaintiff, allow reasonable attorney fees and costs to be paid by the defendant.
16.856(6m)(am)
(am) Except as provided in
pars. (b) and
(d), any contractor, subcontractor or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.
16.856(6m)(b)
(b) Whoever induces any person who seeks to be or is employed on any project of public works that is subject to this section to give up, waive, or return any part of the wages to which the person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person for work on a project that is not subject to this section during a week in which the person works both on a project of public works that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment, or by any other means is guilty of an offense under
s. 946.15 (1).
16.856(6m)(c)
(c) Any person employed on a project of public works that is subject to this section who knowingly permits a contractor, subcontractor, or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives, or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives, or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project of public works that is subject to this section and on a project that is not subject to this section, is guilty of an offense under
s. 946.15 (2).
16.856(6m)(d)
(d) Whoever induces any person who seeks to be or is employed on any project of public works that is subject to this section to permit any part of the wages to which the person is entitled under the contract governing the project to be deducted from the person's pay is guilty of an offense under
s. 946.15 (3), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is subject to
40 USC 3142.
16.856(6m)(e)
(e) Any person employed on a project of public works that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under
s. 946.15 (4), unless the deduction would be permitted under
29 CFR 3.5 or
3.6 from a person who is working on a project that is subject to
40 USC 3142.
16.856(7)(a)(a) The department shall promulgate any rules that the department determines are necessary to implement and ensure compliance with this section.
