“Cost-benefit analysis" means a comprehensive study to identify and compare the total cost, quality, technical expertise, and timeliness of a service performed by state employees and resources with the total cost, quality, technical expertise, and timeliness of the same service obtained by means of a contract for contractual services.
“Executive branch agency" means an agency in the executive branch but does not include the building commission.
“Judicial branch agency" means an agency created under ch. 757
or an agency created by order of the supreme court.
“Legislative service agency" means an agency created under ch. 13
which is authorized, or the head of which is authorized, to appoint subordinate staff, except the building commission.
“Limited trades work" means the repair or replacement of existing equipment or building components with equipment or components of the same kind, if the work is not dependent upon the design services of an architect or engineer, and does not alter or affect the performance of any building system, structure, exterior walls, roof or exits, or the fire protection or sanitation of the building. “Limited trades work" includes decorative and surface material changes within a building and minor preventive maintenance to ancillary facilities such as drives, sidewalks and fences.
“Municipality" means a county, city, village, town, school district, board of school directors, sewer district, drainage district, technical college district or any other public or quasi-public corporation, officer, board or other body having the authority to award public contracts.
“Officer" includes the person or persons at the head of each agency, by whatever title the person or persons may be elsewhere designated.
“Permanent personal property" means any and all property which in the opinion of the secretary will have a life of more than 2 years.
“Personal computing" means utilizing a computer that is located at the work station where the input or output of data is conducted.
“Recovered material" means a product which is recovered from solid waste in a form identical to the original form for a use that is the same as or similar to the original use.
“Recycled material" means a product which is manufactured from solid waste or paper mill sludge.
“Recycled or recovered content" means the proportion of an item, by weight or other measure, which is recycled material or recovered material.
“Voting securities" means securities that confer upon the holder the right to vote for the election of members of the board of directors or similar governing body of a business, or are convertible into, or entitle the holder to receive upon their exercise, securities that confer such a right to vote.
History: 1971 c. 164
; 1975 c. 41
; 1977 c. 29
; 1979 c. 34
; 1983 a. 27
; 1985 a. 29
, 3200 (1)
; 1987 a. 292
; 1989 a. 335
; 1991 a. 39
; 1993 a. 263
; 1995 a. 27
; 1997 a. 27
; 1999 a. 65
; 2001 a. 16
; 2003 a. 33
; 2005 a. 74
; 2007 a. 20
; 2009 a. 28
; 2011 a. 10
; 2013 a. 20
“Contractual services" include technical and professional services. 65 Atty. Gen. 251.
Subscription service and procurement system. 16.701(1)(1)
The department may provide a subscription service containing current information of interest to prospective vendors concerning state procurement opportunities. If the department provides the service, the department shall assist small businesses, as defined in s. 16.75 (4) (c)
, who are prospective vendors in accessing and using the service by providing facilities or services to the businesses. The department may charge a fee for any such service. The department shall prescribe the amount of any fee by rule.
The department may provide an electronic procurement system to manage all aspects of procurement under this subchapter. The electronic procurement system may supplement or supplant the subscription service under sub. (1)
, and the department may permit prospective vendors to provide product or service information, as provided in sub. (2)
, through the electronic procurement system. If the department provides an electronic procurement system under this subsection, the department may require that an agency use the system. The department may assess agencies and vendors for the costs of the system under this subsection in accordance with a method the department develops.
The department may permit prospective vendors to provide product or service information through the service established under sub. (1)
. The department may prescribe fees or establish fees through a competitive process for the use of the service under this subsection.
See also s. Adm 9.01
, Wis. adm. code.
The department may maintain a bidders list. The bidders list shall include the names and addresses of all persons who request to be notified of bids or competitive sealed proposals, excluding those to be awarded under s. 16.75 (1) (c)
or (2m) (c)
, that are solicited by the department or other agency for the procurement of materials, supplies, equipment, or contractual services under this subchapter. Any bidders list may include the names and addresses of any person who requests to be notified of bids or competitive sealed proposals that are solicited by any agency. The department or other agency shall notify each person on the bidders list of all bids or competitive sealed proposals that are solicited by the department or other agency. The department may remove any person from the bidders list for cause.
Contractual services. 16.705(1)(1)
The department or its agents may contract for services which can be performed more economically or efficiently by such contract. The department shall, by rule, prescribe uniform procedures for determining whether services are appropriate for contracting under this subsection.
The determinations under sub. (1)
do not apply to a contract entered into by any of the following:
The department of workforce development for the Project SEARCH program under s. 47.07
Notwithstanding s. 16.75 (2m)
, and except as provided in s. 16.75 (2) (b)
, the department and its agents may purchase contractual services only if those services are performed within the United States. This requirement does not apply to any of the following:
Contractual services that are not available to be performed within the United States.
Contractual services if the payment for any part of the contractual services is made from federal moneys.
The renewal, modification, or extension of any contract in effect on March 18, 2010.
Contractual services purchased by the Board of Regents of the University of Wisconsin System with moneys appropriated under s. 20.285 (1) (ge)
, or (w)
If contractual services are purchased by the department or its agent that would require an individual performing the services to have access to federal tax information received directly from the federal Internal Revenue Service or from a source that is authorized by the federal Internal Revenue Service, a background check shall be performed on each individual performing the services. The background investigation may include requiring the individual to be fingerprinted on 2 fingerprint cards each bearing a complete set of the individual's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice shall submit any such fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the individual fingerprinted and obtaining records of his or her criminal arrests and convictions.
The department shall promulgate rules for the procurement of contractual services by the department and its designated agents, including but not limited to rules prescribing approval and monitoring processes for contractual service contracts; except as provided in par. (b)
, a requirement for agencies to conduct a uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $50,000 in accordance with standards prescribed in the rules; and, except as provided in par. (b)
, a requirement for agencies to review periodically, and before any renewal, the continued appropriateness of contracting under each contractual services agreement involving an estimated expenditure of more than $50,000.
A cost-benefit analysis or continued appropriateness review is not required for the following services:
Services that federal or state law requires to be performed by contract.
Services that must be provided per a contract, license, or warranty, by the original equipment manufacturer or publisher.
Services that cannot be performed by state employees because the state lacks the required infrastructure.
Web-based software application services that are delivered and managed remotely.
Each officer requesting approval to engage any person to perform contractual services shall submit to the department written justification for such contracting which shall include a description of the contractual services to be procured, justification of need, justification for not contracting with other agencies, a specific description of the scope of contractual services to be performed, and justification for the procurement process if a process other than competitive bidding is to be used. The department may not approve any contract for contractual services unless it is satisfied that the justification for contracting conforms to the requirements of this section and ss. 16.71
The department shall promulgate rules to assure that the process used for selection of persons to perform contractual services includes a review of the independence and relationship, if any, of the contractor to employees of the agency, disclosure of any former employment of the contractor or employees of the contractor with the agency and a procedure to minimize the likelihood of selection of a contractor who provides or is likely to provide services to industries, client groups or individuals who are the object of state regulation or the recipients of state funding to a degree that the contractor's independence would be compromised.
If the agency for which contractual services are performed under a contractual services agreement concludes that the performance was unsatisfactory, the agency shall file with the department an evaluation of the contractor's performance within 60 days after the fulfillment of the agreement. The evaluation shall be in such form as the secretary may require.
The department shall review evaluations submitted under sub. (6)
and promulgate rules prescribing procedures to assure that future contracts for contractual services are not awarded to contractors whose past performance is found to be unsatisfactory, to the extent feasible.
The department shall, annually on or before October 15, submit to the governor, the joint committee on finance, the joint legislative audit committee and the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3)
, a report concerning the number, value and nature of contractual service procurements authorized for each agency during the preceding fiscal year. The report shall also include, with respect to contractual service procurements by agencies for the preceding fiscal year:
A summary of the cost-benefit analyses completed by agencies in compliance with rules promulgated by the department under sub. (2)
Recommendations for elimination of unneeded contractual service procurements and for consolidation or resolicitation of existing contractual service procurements.
The department shall maintain a list of persons that are or have been a party to a contract with the state under this subchapter who have violated a provision of this subchapter or a contract under this subchapter. The parties on the list are ineligible for state contracts and no state contract may be awarded to a party on the ineligible list. The department may remove any party from the ineligible list if the department determines that the party's practices comply with this subchapter and provide adequate safeguards against future violations of this subchapter or contracts under this subchapter.
See also ch. Adm 10
, Wis. adm. code.
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
It is possible for the state to lease one of its parking facilities to an independent contractor upon a finding that an independent contractor can perform the service of operating and maintaining the parking facility more economically or more efficiently than the civil service system. 62 Atty. Gen. 183.
Purchasing; powers. 16.71(1)(1)
Except as otherwise required under this section and s. 16.78
or as authorized in s. 16.74
, the department shall purchase and may delegate to special designated agents the authority to purchase all necessary materials, supplies, equipment, all other permanent personal property and miscellaneous capital, and contractual services and all other expense of a consumable nature for all agencies. In making any delegation, the department shall require the agent to adhere to all requirements imposed upon the department in making purchases under this subchapter. All materials, services and other things and expense furnished to any agency and interest paid under s. 16.528
shall be charged to the proper appropriation of the agency to which furnished.
The department shall not delegate to any executive branch agency, other than the board of regents of the University of Wisconsin System, the authority to enter into any contract for materials, supplies, equipment, or contractual services relating to information technology or telecommunications prior to review and approval of the contract by the department. The department may delegate this authority to the University of Wisconsin-Madison. No executive branch agency, other than the board of regents of the University of Wisconsin System, may enter into any such contract without review and approval of the contract by the department. The University of Wisconsin-Madison may enter into any such contract without review and approval by the department. Any executive branch agency that enters into a contract relating to information technology under this section shall comply with the requirements of s. 16.973 (13)
. Any delegation to the board of regents of the University of Wisconsin System or to the University of Wisconsin-Madison is subject to the limitations prescribed in s. 36.585
The department of administration shall delegate authority to make all purchases for prison industries to the department of corrections. This delegation may be withdrawn by the department of administration only with the consent of, and in accordance with the terms specified by, the joint committee on finance, for failure to comply with applicable purchasing rules, procedures or statutory requirements.
If the department makes or delegates to the department of revenue or to any other designated purchasing agent under sub. (1)
the authority to make a major procurement, as defined in s. 565.01 (4)
, for the department of revenue, the department, department of revenue or designated purchasing agent shall comply with the requirements under s. 565.25
The department shall delegate to the Board of Regents of the University of Wisconsin System and to the University of Wisconsin-Madison the authority to enter into contracts for materials, supplies, equipment, or services that relate to higher education and that agencies other than the University of Wisconsin-System do not commonly purchase.
The department shall delegate authority to the department of corrections to enter into contracts for global positioning system tracking equipment, implementation, and tracking services under ss. 301.48 (3)
The department shall delegate authority to the department of financial institutions to enter into vendor contracts under s. 224.51
The department may assess any agency or municipality to which it provides services under this subchapter for the cost of the services provided to the agency or municipality. The department may also identify savings that the department determines to have been realized by an agency to which it provides services under this subchapter and may assess the agency for not more than the amount of the savings identified by the department.
See also ch. Adm 7
and s. Adm 10.13
, Wis. adm. code.
The applicability of this subchapter is determined by the purpose for the purchase, not the source of funds. 64 Atty. Gen. 4.
Purchasing, duties. 16.72(1)(1)
The department of administration shall check or have checked, as to quantity and quality, the delivery to agencies of all purchases made under s. 16.71
The department shall prepare standard specifications, as far as possible, for all state purchases. By “standard specifications" is meant a specification, either chemical or physical or both, prepared to describe in detail the article which the state desires to purchase, and trade names shall not be used. On the formulation, adoption and modification of any standard specifications, the department of administration shall also seek and be accorded without cost, the assistance, advice and cooperation of other agencies and officers. Each specification adopted for any commodity shall, insofar as possible, satisfy the requirements of any and all agencies which use it in common.
Except as provided in ss. 16.25 (4) (b)
, and 565.25 (2) (a) 4.
, the department shall prepare or review specifications for all materials, supplies, equipment, other permanent personal property and contractual services not purchased under standard specifications. Such “nonstandard specifications" may be generic or performance specifications, or both, prepared to describe in detail the article which the state desires to purchase either by its physical properties or by its programmatic utility. When appropriate for such nonstandard items or services, trade names may be used to identify what the state requires, but wherever possible 2 or more trade names shall be designated and the trade name of any Wisconsin producer, distributor or supplier shall appear first.
To the extent possible, the department shall write specifications so as to permit the purchase of materials manufactured in the United States, as defined in s. 16.754 (1)
In writing the specifications under this subsection, the department and any other designated purchasing agent under s. 16.71 (1)
shall incorporate requirements for the purchase of products made from recycled materials and recovered materials if their use is technically and economically feasible. Each authority other than the University of Wisconsin Hospitals and Clinics Authority and the Lower Fox River Remediation Authority, in writing specifications for purchasing by the authority, shall incorporate requirements for the purchase of products made from recycled materials and recovered materials if their use is technically and economically feasible. The specifications shall include requirements for the purchase of the following materials:
Construction materials, including insulating materials.
Furnishings, including rugs, carpets and furniture.
Highway equipment, including signs, signposts, reflectors, guardrails, lane dividers and barricades.
In writing specifications under this subsection, the department, any other designated purchasing agent under s. 16.71 (1)
, and each authority other than the University of Wisconsin Hospitals and Clinics Authority and the Lower Fox River Remediation Authority shall incorporate requirements relating to the recyclability and ultimate disposition of products and, wherever possible, shall write the specifications so as to minimize the amount of solid waste generated by the state, consistent with the priorities established under s. 287.05 (12)
. All specifications under this subsection shall discourage the purchase of single-use, disposable products and require, whenever practical, the purchase of multiple-use, durable products.