Chapter 16

16.62 History History: 1975 c. 41, 224; Stats. 1975 s. 16.62; 1977 c. 29, 418; 1979 c. 34 s. 2102 (1) (b), (c); 1979 c. 175; 1981 c. 350; 1983 a. 27 ss. 87, 88, 1804 to 1806; 1985 a. 180 s. 30m; 1987 a. 27; 1987 a. 147 s. 25; 1991 a. 39; 1995 a. 27, 216; 2001 a. 16; 2015 a. 196.

16.63 16.63 Sale of state’s rights to tobacco settlement agreement payments.

16.63(1) (1) In this section:

16.63(1)(a) (a) “Purchaser” means any person who has purchased the state’s right to receive any of the payments under the tobacco settlement agreement.

16.63(1)(b) (b) “Tobacco settlement agreement” means the Attorneys General Master Tobacco Settlement Agreement of November 23, 1998.

16.63(1)(c) (c) “Tobacco settlement revenues” means the right to receive settlement payments arising from or pursuant to the tobacco settlement agreement and all direct or indirect proceeds of that right.

16.63(2) (2) Before July 1, 2009, the secretary may sell for cash or other consideration the state’s right to receive any of the payments under the tobacco settlement agreement.

16.63(3) (3) The secretary may organize one or more nonstock corporations under ch. 181 or limited liability companies under ch. 183 for any purpose related to the sale of the state’s right to receive any of the payments under the tobacco settlement agreement and may take any action necessary to facilitate and complete the sale.

16.63(3m) (3m) 

16.63(3m)(a) (a) If the secretary sells the state’s right to receive any of the payments under the tobacco settlement agreement, the secretary shall require, as a condition of the sale, that the purchaser notify the secretary if any bonds or other obligations are issued that are secured by any of the payments and provide the secretary with all information on the distribution of the bond or obligation proceeds.

16.63(3m)(b) (b) The secretary shall submit a report to the joint committee on finance that includes all of the information provided to the secretary by the purchaser under par. (a).

16.63(4) (4) 

16.63(4)(a) (a) Tobacco settlement revenues may not be considered proceeds of any property that is not tobacco settlement revenues.

16.63(4)(b) (b) Except as otherwise provided in this subsection, the creation, perfection, and enforcement of security interests in tobacco settlement revenues are governed by ch. 409. Notwithstanding ch. 409, with regard to creating, perfecting, and enforcing a valid security interest in tobacco settlement revenues:

16.63(4)(b)1. 1. If this state or the Wisconsin Health and Educational Facilities Authority is the debtor in the transaction, the proper place to file the required financing statement to perfect the security interest is the department of financial institutions.

16.63(4)(b)2. 2. The required financing statement shall include a description of collateral that describes the collateral as general intangibles consisting of the right to receive settlement payments arising from or pursuant to the tobacco settlement agreement and all proceeds of that right. The required financing statement may include any additional description of collateral that is legally sufficient under the laws of this state.

16.63(4)(b)3. 3. The tobacco settlement revenues are general intangibles for purposes of ch. 409.

16.63(4)(b)4. 4. A security interest perfected under this paragraph is enforceable against the debtor, any assignee or grantee, and all 3rd parties, including creditors under any lien obtained by judicial proceedings, subject only to the rights of any 3rd parties holding security interests in the tobacco settlement revenues previously perfected under this paragraph. Unless the applicable security agreement provides otherwise, a perfected security interest in the tobacco settlement revenues is a continuously perfected security interest in all tobacco settlement revenues existing on the date of the agreement or arising after the date of the agreement. A security interest perfected under this paragraph has priority over any other lien created by operation of law or otherwise, which subsequently attaches to the tobacco settlement revenues.

16.63(4)(b)5. 5. The priority of a security interest created under this paragraph is not affected by the commingling of proceeds arising from the tobacco settlement revenues with other amounts.

16.63(4)(c) (c) The sale, assignment, and transfer of tobacco settlement revenues are governed by this paragraph. All of the following apply to a sale, assignment, or transfer under this paragraph:

16.63(4)(c)1. 1. The sale, assignment, or transfer is an absolute transfer of, and not a pledge of or secured transaction relating to, the seller’s right, title, and interest in, to, and under the tobacco settlement revenues, if the documents governing the transaction expressly state that the transaction is a sale or other absolute transfer. After such a transaction, the tobacco settlement revenues are not subject to any claims of the seller or the seller’s creditors, other than creditors holding a prior security interest in the tobacco settlement revenues perfected under par. (b).

16.63(4)(c)2. 2. The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1. and the corresponding characterization of the purchaser’s property interest is not affected by any of the following factors:

16.63(4)(c)2.a. a. Commingling of amounts arising with respect to the tobacco settlement revenues with other amounts.

16.63(4)(c)2.b. b. The retention by the seller of a partial or residual interest, including an equity interest, in the tobacco settlement revenues, whether direct or indirect, or whether subordinate or otherwise.

16.63(4)(c)2.c. c. The sale, assignment, or transfer of only a portion of the tobacco settlement revenues or an undivided interest in the tobacco settlement revenues.

16.63(4)(c)2.d. d. Any recourse that the purchaser or its assignees may have against the seller.

16.63(4)(c)2.e. e. Whether the seller is responsible for collecting payments due under the tobacco settlement revenues or for otherwise enforcing any of the tobacco settlement revenues or retains legal title to the tobacco settlement revenues for the purpose of these collection activities.

16.63(4)(c)2.f. f. The treatment of the sale, assignment, or transfer for tax purposes.

16.63(4)(c)3. 3. The sale, assignment, or transfer is perfected automatically as against 3rd parties, including any 3rd parties with liens created by operation of law or otherwise, upon attachment under ch. 409.

16.63(4)(c)4. 4. Nothing in this subsection precludes consideration of the factors listed in subd. 2. a. to e. in determining whether the sale, assignment, or transfer is a sale for tax purposes. The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1. may not be considered in determining whether the sale, assignment, or transfer is a sale for tax purposes.

16.63(5) (5) If the secretary sells the state’s right to receive any of the payments under the tobacco settlement agreement, the state pledges to and agrees with any purchaser or subsequent transferee of the state’s right to receive any of the payments under the tobacco settlement agreement that the state will not limit or alter its powers to fulfill the terms of the tobacco settlement agreement, nor will the state in any way impair the rights and remedies provided under the tobacco settlement agreement. The state also pledges to and agrees with any purchaser or subsequent transferee of the state’s right to receive any of the payments under the tobacco settlement agreement that the state will pay all costs and expenses in connection with any action or proceeding brought by or on behalf of the purchaser or any subsequent transferee related to the state’s not fulfilling the terms of the tobacco settlement agreement. The secretary may include this pledge and agreement of the state in any contract that is entered into by the secretary under this section.

16.63(6) (6) If the secretary sells the state’s right to receive any of the payments under the tobacco settlement agreement, the state pledges to and agrees with any purchaser or subsequent transferee of the state’s right to receive any of the payments under the tobacco settlement agreement that the state will not limit or alter the powers of the secretary under this section until any contract that is entered into under this section is fully performed, unless adequate provision is made by law for the protection of the rights and remedies of the purchaser or any subsequent transferee under the contract. The secretary may include this pledge and agreement of the state in any contract that is entered into by the secretary under this section.

16.63(8) (8) This subsection and subs. (8m) and (9) shall govern all civil claims, suits, proceedings, and actions brought against the state relating to the sale of the state’s right to receive any of the payments under the tobacco settlement agreement. If the state fails to comply with this section or the terms of any agreement relating to the sale of the state’s right to receive any of the payments under the tobacco settlement agreement, an action to compel compliance may be commenced against the state.

16.63(8m) (8m) If the recovery of a money judgment against the state is necessary to give the plaintiff in an action under sub. (8) complete relief, a claim for the money damages may be joined with the claim commenced under sub. (8).

16.63(9) (9) Sections 16.007, 16.53, and 775.01 do not apply to claims against the state under sub. (8) or (8m). If there is a final judgment against the state in such an action, the judgment shall be paid as provided in s. 775.04 together with interest at the rate of 10 percent per year from the date such payment was judged to have been due until the date of payment of the judgment.

16.63 History History: 2001 a. 16, 104; 2005 a. 253; 2007 a. 226.

16.643 16.643 Support accounts for persons with disabilities.

16.643(1) (1) Termination of account. Upon the death of an account owner whose account is part of a qualified ABLE program under section 529A of the Internal Revenue Code, the account shall terminate, and upon such termination any amount remaining in the account shall be recoverable by the state under s. 49.849 as property of a decedent that is recoverable under that statute. Any amount that remains in the account following such recovery under s. 49.849 shall be paid to the account owner’s estate. Recovery authorized under this subsection may relate only to public assistance received by a beneficiary on and after the date on which an account is established.

16.643(2) (2) Eligibility for long-term care programs. A person who is determining eligibility for an individual for a long-term care program under s. 46.275 or 46.277, the family care benefit under s. 46.286, the family care partnership program, the long-term care program defined in s. 46.2899 (1), or any other demonstration program or program operated under a waiver of federal medicaid law that provides long-term care benefits shall exclude from the determination any income from assets accumulated in an account that is part of a qualified ABLE program under section 529A of the Internal Revenue Code.

16.643 History History: 2015 a. 55, 312; 2019 a. 9.

subch. IV of ch. 16 SUBCHAPTER IV

PURCHASING

16.70 16.70 Purchasing; definitions. In ss. 16.70 to 16.78:

16.70(1b) (1b) “Affiliate” means a person, as defined in s. 77.51 (10), that controls, is controlled by, or is under common control with another person, as defined in s. 77.51 (10).

16.70(1e) (1e) “Agency” means an office, department, 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, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority.

16.70(2) (2) “Authority” means a body created under subch. II of ch. 114 or under ch. 231, 232, 233, 234, 237, or 279.

16.70(2m) (2m) “Computer services” means any services in which a computer is utilized other than for personal computing purposes.

16.70(3) (3) “Contractual services” includes all services, materials to be furnished by a service provider in connection with services, and any limited trades work involving less than $30,000 to be done for or furnished to the state or any agency.

16.70(3e) (3e) “Control” means to own, directly or indirectly, more than 10 percent of the interest in or voting securities of a business.

16.70(3g) (3g) “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.

16.70(3m) (3m) “Educational technology” has the meaning given in s. 16.99 (3).

16.70(4) (4) “Executive branch agency” means an agency in the executive branch but does not include the building commission.

16.70(4m) (4m) “Information technology” has the meaning given in s. 16.97 (6).

16.70(5) (5) “Judicial branch agency” means an agency created under ch. 757 or 758 or an agency created by order of the supreme court.

16.70(6) (6) “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.

16.70(7) (7) “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.

16.70(8) (8) “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.

16.70(9) (9) “Officer” includes the person or persons at the head of each agency, by whatever title the person or persons may be elsewhere designated.

16.70(10) (10) “Permanent personal property” means any and all property which in the opinion of the secretary will have a life of more than 2 years.

16.70(10m) (10m) “Personal computing” means utilizing a computer that is located at the work station where the input or output of data is conducted.

16.70(11) (11) “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.

16.70(12) (12) “Recycled material” means a product which is manufactured from solid waste or paper mill sludge.

16.70(13) (13) “Recycled or recovered content” means the proportion of an item, by weight or other measure, which is recycled material or recovered material.

16.70(14) (14) “State” does not include a district created under subch. II, III, IV, or V of ch. 229.

16.70(15) (15) “Telecommunications” has the meaning given in s. 16.97 (10).

16.70(16) (16) “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.

16.70 History History: 1971 c. 164; 1975 c. 41 s. 52; 1977 c. 29; 1979 c. 34, 221; 1983 a. 27, 106; 1985 a. 29 ss. 122a to 122f, 3200 (1); 1987 a. 292, 399; 1989 a. 335; 1991 a. 39, 189; 1993 a. 263, 399; 1995 a. 27, 56; 1997 a. 27; 1999 a. 65, 167; 2001 a. 16, 38; 2003 a. 33; 2005 a. 74, 89, 335; 2007 a. 20, 97; 2009 a. 28; 2011 a. 10, 229; 2013 a. 20, 165, 166.

16.70 Annotation “Contractual services” includes the provision of legal services under contract. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

16.70 Annotation “Contractual services” include technical and professional services. 65 Atty. Gen. 251.

16.701 16.701 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.

16.701(1m) (1m) 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.

16.701(2) (2) 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.

16.701 History History: 1995 a. 27, 351; 2001 a. 16; 2013 a. 20.

16.701 Cross-reference Cross-reference: See also s. Adm 9.01, Wis. adm. code.

16.7015 16.7015 Bidders list. 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.

16.7015 History History: 1995 a. 351; 2001 a. 16; 2013 a. 20.

16.705 16.705 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.

16.705(1b) (1b) The determinations under sub. (1) do not apply to a contract entered into by any of the following:

16.705(1b)(a) (a) The department under s. 16.25 (4) (b).

16.705(1b)(b) (b) The department of corrections for global positioning system tracking services under s. 301.48 (3) or 301.49.

16.705(1b)(c) (c) The department under s. 16.848 (1).

16.705(1b)(d) (d) The department of financial institutions under s. 224.51.

16.705(1b)(f) (f) The department of workforce development for the Project SEARCH program under s. 47.07.

16.705(1r) (1r) Notwithstanding s. 16.75 (2m) and (3m), and except as provided in s. 16.75 (2) (b) and (7), 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:

16.705(1r)(a) (a) Contractual services that are not available to be performed within the United States.

16.705(1r)(b) (b) Contractual services if the payment for any part of the contractual services is made from federal moneys.

16.705(1r)(c) (c) The renewal, modification, or extension of any contract in effect on March 18, 2010.