16.855 Construction project contracts.
16.855
16.855 Construction project contracts.16.855(1)
(1) The department shall let by contract to the lowest qualified responsible bidder all construction work when the estimated construction cost of the project exceeds $40,000, except for construction work authorized under s. 16.858 and except as provided in sub. (10m) or s. 13.48 (19). If a bidder is not a Wisconsin firm and the department determines that the state, foreign nation or subdivision thereof in which the bidder is domiciled grants a preference to bidders domiciled in that state, nation or subdivision in making governmental purchases, the department shall give a preference over that bidder to Wisconsin firms, if any, when awarding the contract, in the absence of compelling reasons to the contrary. The department may enter into agreements with states, foreign nations and subdivisions thereof for the purpose of implementing this subsection.16.855(2)
(2) Except for projects authorized under s. 16.858, whenever the estimated construction cost of a project exceeds $40,000, or if less and in the best interest of the state, the department shall:16.855(2)(a)
(a) Advertise for proposals by publication of a class 1 notice, under ch. 985, in the official state newspaper. Similar notices may be placed in publications likely to inform potential bidders of the project. The department may solicit bids from qualified contractors to insure adequate competition. All advertisements shall contain the following information:16.855(2)(a)1.
1. Location of work and the name of the owner.16.855(2)(a)2.
2. Scope of the work.16.855(2)(a)3.
3. Amount of bid guarantee required.16.855(2)(a)4.
4. Date, time and place of bid opening.16.855(2)(a)5.
5. Date, and place where plans will be available.16.855(2)(b)
(b)16.855(2)(b)1.
1. Require that a guarantee of not less than 10% of the amount of the bid shall be included with each bid submitted guaranteeing the execution of the contract within 10 days of offering, if offered within 30 days after the date set for the opening thereof. The parties may agree to extend the time for offering of the contract beyond 30 days after the opening of bids.16.855(2)(b)2.
2. If the federal government participates in a state project, the bid guarantee required in this paragraph controls, unless the federal government makes a specific provision for a different bid guarantee.16.855(2)(c)
(c) Publicly open and read aloud, at the time and place specified in the notice, all bids. Within a reasonable time after opening, tabulations of all bids received shall be available for public inspection.16.855(2)(d)
(d) Not allow or make any correction or alteration of a bid, except as provided in sub. (6).16.855(3)
(3) At any time prior to the published time of opening, a bid may be withdrawn on written request submitted to the department by the bidder or the bidder's agent, without prejudice to the right of the bidder to file a new bid.16.855(4)
(4) If a bid contains an error, omission or mistake, the bidder may limit liability to the amount of the bidder's bid guarantee by giving written notice of intent not to execute the contract to the department within 72 hours of the bid opening. The department of administration, with the approval of the attorney general, may settle and dispose of cases and issues arising under this subsection. However, if no such settlement is obtained, the bidder is not entitled to recover the bid guarantee unless the bidder proves in the circuit court for Dane County that in making the mistake, error or omission the bidder was free from negligence.16.855(5)
(5) Any or all bids may be rejected if, in the opinion of the department, it is in the best interest of the state. The reasons for rejection shall be given to the bidder or bidders in writing.16.855(6)
(6) Nothing contained in this section shall prevent the department from negotiating deductive changes in the lowest qualified bid.16.855(7)
(7) The department may issue contract change orders, if they are deemed to be in the best interests of the state.16.855(9)
(9) The department may require bidders to submit sworn statements as to financial ability, equipment and experience in construction and require such other information as may be necessary to determine their competency.16.855(10)
(10) When the department believes that it is in the best interests of the state to contract for certain articles or materials available from only one source, it may contract for said articles or materials without the usual statutory procedure, after a publication of a class 1 notice, under ch. 985, in the official state newspaper.16.855(10m)
(10m)16.855(10m)(ac)
(ac) In this subsection, "disabled veteran-owned business" means a business certified by the department of commerce under s. 560.0335 (3).16.855 - ANNOT.
Note: The cross-reference to s. 560.0335 was changed from s. 560.033 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 560.033, as created by 2009 Wis. Act 299.16.855(10m)(am)
(am)16.855(10m)(am)1.
1. In awarding construction contracts the department shall attempt to ensure that 5 percent of the total amount expended in each fiscal year is awarded to contractors and subcontractors which are minority businesses, as defined under s. 16.75 (3m) (a) 4.16.855(10m)(am)2.
2. In awarding construction contracts, the department shall make efforts to ensure that a portion of the total amount expended in each fiscal year is awarded to contractors and subcontractors that are disabled veteran-owned businesses.16.855(10m)(am)3.
3. The department may award any contract to a minority business or disabled veteran-owned business, or a business that is both a minority business and a disabled veteran-owned business, that submits a qualified responsible bid that is no more than 5 percent higher than the apparent low bid.16.855(10m)(b)
(b) Upon completion of any contract, the contractor shall report to the department any amount of the contract that was subcontracted to minority businesses or disabled veteran-owned businesses.16.855(10m)(c)
(c) The department shall maintain and annually publish data on contracts awarded to minority businesses and disabled veteran-owned businesses under this subsection and ss. 16.87 and 84.075.16.855 - ANNOT.
Note: Sub. (10m) is shown as affected eff. 11-1-10 by 2009 Wis. Act 299. Prior to 11-1-10 it reads:16.855 - ANNOT.
(10m) (a) In awarding construction contracts the department shall attempt to ensure that 5% of the total amount expended in each fiscal year is awarded to contractors and subcontractors which are minority businesses, as defined under s. 16.75 (3m) (a). The department may award any contract to a minority business that submits a qualified responsible bid that is no more than 5% higher than the apparent low bid.16.855 - ANNOT.
(b) Upon completion of any contract, the contractor shall report to the department any amount of the contract that was subcontracted to minority businesses.16.855 - ANNOT.
(c) The department shall maintain and annually publish data on contracts awarded to minority businesses under this subsection and ss. 16.87 and 84.075.16.855(10n)
(10n)16.855(10n)(a)
(a) In this subsection, "minority group member" has the meaning given in s. 560.036 (1) (f).16.855(10n)(b)
(b) The department shall enter into a memorandum of understanding with the state fair park board which shall specify procedures for construction work and professional services contracts to be performed for the state fair park board under which any person who is awarded such a contract shall agree, as a condition to receiving the contract, that his or her goal shall be to ensure that at least 25% of the employees hired because of the contract will be minority group members and at least 5% of the employees hired because of the contract will be women.16.855(10p)
(10p) For each proposed construction project, the department shall ensure that the specifications require the use of recovered materials and recycled materials, as defined under s. 16.70 (11) and (12), to the extent that such use is technically and economically feasible.16.855(10s)
(10s)16.855(10s)(a)
(a) The department shall, by rule, prescribe and annually review and revise as necessary energy efficiency standards for equipment that is installed as a component of a construction project and that relates to heating, ventilation, air conditioning, water heating or cooling, lighting, refrigeration, or any other function that consumes energy. The standards shall meet or exceed current applicable guidelines of the federal environmental protection agency relating to energy efficiency of the functions specified in this paragraph, guidelines that apply to the federal energy management program under 42 USC 8251 et seq., and standards established by the American society of heating, refrigerating and air-conditioning engineers.16.855(10s)(b)
(b) The department shall ensure that the specifications for any equipment that is designed for heating, ventilation, air conditioning, water heating or cooling, lighting, refrigeration, or any other function that consumes energy under any construction project contract administered by the department meet applicable standards established under par. (a). If there is no standard under par. (a) applicable to the type of equipment being purchased or if the equipment meeting that standard is not reasonably available, the department shall ensure that energy consumption within a building, structure, or facility and all equipment that is purchased under each contract administered by the department maximizes energy efficiency to the extent technically and economically feasible. The department shall not determine that equipment that meets the applicable standard under par. (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.16.855(11)
(11) A contractor shall be liable for any damages to another contractor working on the same project caused by reason of the former's default, act or nonperformance.16.855(12)
(12) Nothing contained in this section shall be construed so as to make contracts let under this section subject to s. 66.0901.16.855(13)
(13)16.855(13)(a)
(a) A list of subcontractors shall not be required to be submitted with the bid. The department may require the prime contractor to submit in writing the names of prospective subcontractors for the department's approval before the award of a contract to the prime contractor.16.855(13)(b)
(b) All subcontractors must be approved in writing by the department prior to their employment. Requests for approval of prospective subcontractors shall be in writing.16.855(13)(c)
(c) Changes may be made in the list of subcontractors, with the agreement of the department and the prime contractor, when in the opinion of the department it is in the best interests of the state to require the change.16.855(14)
(14)16.855(14)(a)
(a) If a project requires prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department shall take both single bids and separate bids on any division of the work that it designates. If a project does not require prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department may take single bids or separate bids on any division of the work that it designates. If the department awards contracts by the division of work, the department shall award the contracts according to the division of work selected for bidding. Except as provided in sub. (10m) (am), the department shall award all contracts to the lowest qualified responsible bidder or bidders that result in the lowest total construction cost for the project.16.855 - ANNOT.
Note: Par. (a) is shown as amended eff. 11-1-10 by 2009 Wis. Act 299. Prior to 11-1-10 it reads:16.855 - ANNOT.
(a) If a project requires prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department shall take both single bids and separate bids on any division of the work that it designates. If a project does not require prior approval of the building commission under s. 13.48 (10) (a) and bids are required to be solicited under sub. (2), the department may take single bids or separate bids on any division of the work that it designates. If the department awards contracts by the division of work, the department shall award the contracts according to the division of work selected for bidding. Except as provided in sub. (10m) (a), the department shall award all contracts to the lowest qualified responsible bidder or bidders that result in the lowest total construction cost for the project.16.855(14)(b)
(b) The state is not liable to a prime contractor for damage from delay caused by another prime contractor if the department takes reasonable action to require the delaying prime contractor to comply with its contract. If the state is not liable under this paragraph, the delayed prime contractor may bring an action for damages against the delaying prime contractor.16.855(15)
(15) The department shall promulgate rules to implement the advertising and award of contracts.16.855(16)
(16)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)
(b)16.855(16)(b)1.
1. In this paragraph, "agency" has the meaning given in s. 16.70 (1e).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)
(19) As the work progresses under any contract for construction the department, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work done, which shall entitle the contractor to receive the amount thereof, less the retainage, from the proper fund. The retainage shall be an amount equal to not more than 5% of the estimate until 50% of the work has been completed. At 50% completion, no additional amounts shall be retained, and partial payments shall be made in full to the contractor unless the architect or engineer certifies that the job is not proceeding satisfactorily. At 50% completion or any time thereafter when the progress of the work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10% of the value of the work completed. Upon substantial completion of the work, an amount retained may be paid to the contractor. For the purposes of this section, estimates may include any fabricated or manufactured materials and components specified, previously paid for by contractor and delivered to the work or properly stored and suitable for incorporation in the work embraced in the contract. This subsection does not apply to contracts awarded under s. 16.858.16.855(20)
(20) This section does not apply to construction work performed by University of Wisconsin System students when the construction work performed is a part of a curriculum and where the work is course-related for the student involved. Prior approval of the building commission must be obtained for all construction projects to be performed by University of Wisconsin System students.16.855(21)
(21) This section does not apply to contracts by the department of natural resources for construction work related to hazardous substance spill response under s. 292.11 or environmental repair under s. 292.31.16.855(22)
(22) The provisions of this section, except sub. (10m), do not apply to construction work for any project 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 is at least $40,000, 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 - ANNOT.
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; s. 13.92 (1) (bm) 2.16.855 - ANNOT.
Cross Reference: See also ch. Adm 21, Wis. adm. code.16.855 - ANNOT.
Under subs. (2) (a) 2. and (14), the department has authority to create a division of work not limited to traditional trade practices, which may include work divisions other than the four enumerated in the statute if the new division involves a specialized area of construction, e.g., elevator work that is commonly designated a division, although it involves the electrical trade. Breiby v. Dept. of Administration, 55 Wis. 2d 16, 197 N.W.2d 737 (1972).16.855 - ANNOT.
A bid proposal asking for the name of a subcontractor is contrary to sub. (13) (a), and the request is invalid. 61 Atty. Gen. 224.16.855 - ANNOT.
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.