2019 Wisconsin Act 9

(f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32).

(8) Contract award. (a) In this subsection:

1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office.

(b) No later than 10 days following the issuance of a notice of intent to award a design-build contract, the office shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

(c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or members will perform and the dollar value of the services.

(d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or members by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or members by the difference. If the value of construction services to be performed by the design-builder or members is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award.

(9) Project delivery. An individual identified in a response to a request for qualifications or in a technical proposal may be replaced by a design-builder if the office determines that the new individual meets the qualifications described in the response to the request for qualifications or in the technical proposal and that the individual's qualifications are at least equal to the qualifications of the individual being replaced.

(10) Liability. (a) Nothing in this section shall be construed as relieving a design-builder of 3rd-party liability or liability for loss or damage to property of the state or a county or municipality.

(b) All design services, including architectural and engineering services, provided under a design-build contract are services and not products.

(11) Stipulated fee. (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department's estimated cost of design and construction as follows:

1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office cannot award a fee to a proposal that exceeds the maximum fixed price.

2. To all qualified responsible bidders that provide a responsive proposal, if the office does not issue a notice of intent to award a contract.

3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals.

(b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

(c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the stipulated fee, the department cannot use work product in the design-builder's unsuccessful proposal.

(12) Rules. The department may promulgate rules necessary to implement this section.

(13) Appeals. (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in chapter 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a request for qualifications or a request for proposals issued by the office under this section:

1. The request does not include qualifications, requirements, or other items required under this section.

2. The request does not comply with procedural requirements under this section.

3. The request contains material errors or omissions.

4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

5. The request indicates a bias against or preference for a specific design-builder.

6. The request exceeds the department's authority.

(b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in chapter 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section:

1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

3. There is evidence of collusion or fraud involving either the design-builder who received the notice of intent to award a contract or a member of the technical review committee.

4. There is evidence of bias of a member of the technical review committee.

5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract.

6. The technical proposal or cost proposal submitted by the design-builder who received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced.

(c) If the office prevails upon judicial review, following any protest and appellate court proceedings, the office shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the office all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including but not limited to the purpose of harassing, causing unnecessary delay, or causing needless cost for the office or parties.

(14) Deliverables. (a) No later than 3 months after the effective date of this section .... [LRB inserts date], the office shall prepare a report that establishes a program structure for delivering projects as required under this subsection. The report shall specify the types of highway improvement projects to be considered and procedures and timelines for the bid process. The office cannot designate a highway improvement project as a design-build project prior to the completion of the report.

(b) No later than 6 months after the effective date of this section .... [LRB inserts date], the office shall prepare a design-build procurement manual that incorporates the requirements under this subsection and any applicable requirements under federal law. The manual shall be created by a committee that includes all of the following members:

1. The director.

2. Two employees of the department who represent the division of the department responsible for transportation project development and who each have not less than 5 years of experience in the transportation construction industry.

3. One person representing a state association of transportation architectural, engineering, or design companies to be nominated by the governor and appointed with the advice and consent of the senate.

4. One person representing a state association of transportation construction companies to be nominated by the governor and appointed with the advice and consent of the senate.

5. One person representing a national trade group with a design-build certification program and experience in assisting states with the implementation of a design-build program to be nominated by the governor and appointed with the advice and consent of the senate.

(c) No later than December 31, 2026, the office shall submit a report the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.

(d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery pilot program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the pilot program should be made permanent.

9,1082 Section 1082. 84.59 (6) of the statutes is amended to read:

84.59 (6) The building commission may contract revenue obligations when it reasonably appears to the building commission that all obligations incurred under this section can be fully paid from moneys received or anticipated and pledged to be received on a timely basis. Except as provided in this subsection, the principal amount of revenue obligations issued under this section may not exceed $4,055,372,900, excluding any obligations that have been defeased under a cash optimization program administered by the building commission, to be used for transportation facilities under s. 84.01 (28) and major highway projects for the purposes under ss. 84.06 and 84.09. In addition to the foregoing limit on principal amount, the building commission may contract revenue obligations under this section up to $142,254,600, excluding any obligations that have been defeased under a cash optimization program administered by the building commission, to be used for transportation facilities under s. 84.01 (28) and major highway projects for the purposes under ss. 84.06 and 84.09. In addition to the foregoing limit limits on principal amount, the building commission may contract revenue obligations under this section as the building commission determines is desirable to refund outstanding revenue obligations contracted under this section, to make payments under agreements or ancillary arrangements entered into under s. 18.55 (6) with respect to revenue obligations issued under this section, and to pay expenses associated with revenue obligations contracted under this section.

9,1082m Section 1082m. 85.0203 of the statutes is created to read:

85.0203 Mileage-based fees and tolling. (1) The department shall expend not more than $2,500,000 to enter into a contract with a firm for the study of, and preparation of a report regarding, the policies, procedures, and operations needed to implement mileage-based fees and tolling and for the preparation of a traffic and revenue analysis associated with these fees and tolls. No later than December 1, 2022, the firm conducting the study and preparing the analysis under this subsection shall report its findings to the department and the legislature under s. 13.172 (2).

(2) The department shall, in its next subsequent biennial budget request under s. 16.42 following submission of the report under sub. (1), include a recommendation regarding mileage-based fees and tolling.

9,1082o Section 1082o. 85.061 (3) (a) (intro.) of the statutes is amended to read:

85.061 (3) (a) (intro.) The department shall administer a rail passenger route development program. From the appropriation appropriations under s. ss. 20.395 (2) (br) and 20.866 (2) (up), the department may fund any of the following:

9,1082p Section 1082p. 85.061 (3) (b) of the statutes is amended to read:

85.061 (3) (b) The department may not use any proceeds from the bond issue authorized under s. 20.866 (2) (up) or the moneys appropriated under s. 20.395 (2) (br) unless the joint committee on finance approves the use of the proceeds or moneys and, with respect to a route under par. (a) 1. or 2., the department submits evidence to the joint committee on finance that Amtrak or the applicable railroad has agreed to provide rail passenger service on that route. The department may contract with Amtrak, railroads or other persons to perform the activities under the program.

9,1083d Section 1083d. 85.093 of the statutes is created to read:

85.093 Intermodal freight assistance. The department may make grants to public or private applicants for intermodal freight facilities that the department determines have a public purpose. In the 2019-21 fiscal biennium, a grant made under this section shall be paid from the appropriation under s. 20.395 (2) (bu). After July 1, 2021, a grant made under this section shall be paid from the appropriation under s. 20.866 (2) (uw). For the 2019-21 fiscal biennium, grants under this section cannot exceed $1,500,000.

9,1084 Section 1084. 85.20 (4m) (a) 6. cm. of the statutes is amended to read:

85.20 (4m) (a) 6. cm. From the appropriation under s. 20.395 (1) (ht), the department shall pay $61,724,900 for aid payable for calendar years 2012 to 2014 and $64,193,900 for aid payable for calendar year years 2015 to 2019 and $65,477,800 for calendar year 2020 and thereafter, to the eligible applicant that pays the local contribution required under par. (b) 1. for an urban mass transit system that has annual operating expenses of $80,000,000 or more. If the eligible applicant that receives aid under this subd. 6. cm. is served by more than one urban mass transit system, the eligible applicant may allocate the aid between the urban mass transit systems in any manner the eligible applicant considers desirable.

9,1085 Section 1085. 85.20 (4m) (a) 6. d. of the statutes is amended to read:

85.20 (4m) (a) 6. d. From the appropriation under s. 20.395 (1) (hu), the department shall pay $16,219,200 for aid payable for calendar years 2012 to 2014 and $16,868,000 for aid payable for calendar year years 2015 to 2019 and $17,205,400 for calendar year 2020 and thereafter, to the eligible applicant that pays the local contribution required under par. (b) 1. for an urban mass transit system that has annual operating expenses in excess of $20,000,000 but less than $80,000,000. If the eligible applicant that receives aid under this subd. 6. d. is served by more than one urban mass transit system, the eligible applicant may allocate the aid between the urban mass transit systems in any manner the eligible applicant considers desirable.

9,1086 Section 1086. 85.20 (4m) (a) 7. b. of the statutes is amended to read:

85.20 (4m) (a) 7. b. For the purpose of making allocations under subd. 7. a., the amounts for aids are $23,267,200 in calendar years 2012 and 2013, $23,544,900 in calendar year 2014, and $24,486,700 in calendar year years 2015 to 2019 and $24,976,400 in calendar year 2020 and thereafter. These amounts, to the extent practicable, shall be used to determine the uniform percentage in the particular calendar year.

9,1087 Section 1087. 85.20 (4m) (a) 8. b. of the statutes is amended to read:

85.20 (4m) (a) 8. b. For the purpose of making allocations under subd. 8. a., the amounts for aids are $5,267,000 in calendar years 2012 and 2013, $4,989,300 in calendar year 2014, and $5,188,900 in calendar year years 2015 to 2019 and $5,292,700 in calendar year 2020 and thereafter. These amounts, to the extent practicable, shall be used to determine the uniform percentage in the particular calendar year.

9,1089m Section 1089m. 85.64 of the statutes is created to read:

85.64 Office of innovative program delivery. (1) In this section:

(a) “Director” means the director of the office of innovative program delivery attached to the department under s. 15.463 (1).

(b) “Office” means the office of innovative program delivery attached to the department under s. 15.463 (1).

(2) The secretary shall appoint a director who has no fewer than 5 years of experience in design-build project development and delivery specific to public transportation or public infrastructure construction.

(3) The director shall do all of the following:

(a) Perform the duties and functions required under s. 84.062.

(b) Employ, supervise, and train personnel assigned to the office by the secretary.

(c) Supervise all expenditures of the office.

(4) The office shall perform the duties and functions required under s. 84.062.

9,1091 Section 1091. 86.30 (2) (a) 3. of the statutes is amended to read:

86.30 (2) (a) 3. For each mile of road or street under the jurisdiction of a municipality as determined under s. 86.302, the mileage aid payment shall be $2,202 $2,389 in calendar year 2017 2019 and $2,389 $2,628 in calendar year 2018 2020 and thereafter.

9,1091m Section 1091m. 86.30 (3) of the statutes is created to read:

86.30 (3) Supplemental transportation aids. (a) Amount of aids payments. Notwithstanding sub. (2) and subject to pars. (b) and (c), for a town for which the amount of aid determined under sub. (2) (a) 2. is limited by sub. (2) (d), the amount of aid under this subsection is calculated by dividing $2,500,000 by the total mileage of town roads in towns eligible to receive aid under this subsection and then multiplying that amount by the total mileage of town roads in the town receiving aid. The department shall determine the amount of aid payable under this paragraph no later than October 1 of the year prior to the calender year in which the aid would be payable.

(b) Limit on aids payments. A town may not receive aid under par. (a) that, when combined with the amount the town received under sub. (2), exceeds 100 percent of the town's 3-year average costs.

(c) Recalculation of amount of aids payments. As the department makes aid payments under par. (a), the department shall recalculate the amount of aid payable under par. (a) for all towns that remain below 100 percent of the town's 3-year average costs. The department shall continue to make aids payments until an amount up to $2,500,000 is expended from the appropriation under s. 20.395 (1) (av), or each town eligible for aid under this subsection has received an amount equal to 100 percent of the town's 3-year average costs, whichever occurs first.

(d) Aids payments. The department shall make the payments calculated under par. (a) no later than the first Monday in January of each year.

(e) Sunset. This subsection does not apply after June 30, 2021.

9,1092 Section 1092. 86.30 (9) (b) of the statutes is amended to read:

86.30 (9) (b) For the purpose of calculating and distributing aids under sub. (2), the amounts for aids to counties are $98,400,200 $111,093,800 in calendar year 2017 2019 and $111,093,800 $122,203,200 in calendar year 2018 2020 and thereafter. These amounts, to the extent practicable, shall be used to determine the statewide county average cost-sharing percentage in the particular calendar year.

9,1093 Section 1093. 86.30 (9) (c) of the statutes is amended to read:

86.30 (9) (c) For the purpose of calculating and distributing aids under sub. (2), the amounts for aids to municipalities are $321,260,500 $348,639,300 in calendar year 2017 2019 and $348,639,300 $383,503,200 in calendar year 2018 2020 and thereafter. These amounts, to the extent practicable, shall be used to determine the statewide municipal average cost-sharing percentage in the particular calendar year.

9,1095m Section 1095m. 86.31 (3s) of the statutes is created to read:

86.31 (3s) Discretionary supplemental grants. (a) Funds provided under s. 20.395 (2) (fc) shall be distributed under this subsection as discretionary grants to reimburse political subdivisions for improvements. The department shall solicit and provide discretionary grants under this subsection until all funds appropriated under s. 20.395 (2) (fc) have been expended.

(b) 1. From the appropriation under s. 20.395 (2) (fc), the department shall allocate $32,003,200 in fiscal year 2019-20, to fund county trunk highway improvements.

2. From the appropriation under s. 20.395 (2) (fc), the department shall allocate $35,149,400 in fiscal year 2019-20, to fund town road improvements.

3. From the appropriation under s. 20.395 (2) (fc), the department shall allocate $22,847,400 in fiscal year 2019-20, to fund municipal street improvement projects.

(c) Notwithstanding sub. (4), a political subdivision may apply to the department under this subsection for reimbursement of not more than 90 percent of eligible costs of an improvement.

9,1096m Section 1096m. 86.315 (1) of the statutes is amended to read: