Chapter 16

16.74 History History: 1985 a. 29.

16.74 Annotation Section 13.124 provides a quick, streamlined basis for the legislature’s leadership to obtain counsel for the legislature in “any action.” By contrast, this section allows each house of the legislature to obtain counsel as needed, irrespective of whether an action exists. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

16.74 Annotation Sub. (1) explicitly permits each house of the legislature to purchase contractual services that are required within the legislative branch. The provision does not state that purchase of services must be tied to other physical property purchases. “Contractual services” includes the provision of legal services under contract. This section grants the legislature authority to enter into legal contracts to assist in redistricting and related litigation. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

16.74 Annotation In this case, the Senate and Assembly Committees on Organization were designated by their respective houses to review and complete purchases for attorney services, and the committees approved the hiring of attorneys for redistricting and explicitly granted the senate majority leader and assembly speaker, respectively, authority to enter into contracts. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

16.75 16.75 Buy on low bid, exceptions.

16.75(1) (1) 

16.75(1)(a) (a)

16.75(1)(a)1. 1. All orders awarded or contracts made by the department for all materials, supplies, equipment, and contractual services to be provided to any agency, except as otherwise provided in par. (c) and subs. (2), (2g), (2m), (3m), (3t), (6), (7), (8), (9), (10e), (10m), and (10p) and ss. 16.705 (1r), 16.73 (4) (a), 16.751, 16.754, 50.05 (7) (f), 153.05 (2m) (a), 165.987, and 287.15 (7), shall be awarded to the lowest responsible bidder, taking into consideration life cycle cost estimates under sub. (1m), when appropriate, the location of the agency, the quantities of the articles to be supplied, their conformity with the specifications, and the purposes for which they are required and the date of delivery.

16.75(1)(a)2. 2. If a vendor is not a Wisconsin producer, distributor, supplier or retailer and the department determines that the state, foreign nation or subdivision thereof in which the vendor is domiciled grants a preference to vendors domiciled in that state, nation or subdivision in making governmental purchases, the department and any agency making purchases under s. 16.74 shall give a preference over that vendor to Wisconsin producers, distributors, suppliers and retailers, if any, when awarding the order or contract. The department may enter into agreements with states, foreign nations and subdivisions thereof for the purpose of implementing this subdivision.

16.75(1)(a)3. 3. Bids may be received only in accordance with such specifications as are adopted by the department as provided in this subsection. Any or all bids may be rejected. Whenever sealed bids are invited, each bid, with the name of the bidder, shall be entered on a record, and each record with the successful bid indicated shall, after the award or letting of the contract, be opened to public inspection. Where a low bid is rejected, a complete written record shall be compiled and filed, giving the reason in full for such action. Any waiver of sealed, advertised bids as provided in sub. (2m) or (6) shall be entered on a record kept by the department and open to public inspection.

16.75(1)(b) (b)

16.75(1)(b)1. 1. Except as provided in subd. 2., when the estimated cost exceeds $50,000, the department shall solicit bids.

16.75(1)(b)2. 2. If the item being purchased is a sign, bids shall be solicited unless the estimated cost does not exceed $3,500.

16.75(1)(b)3. 3. If subd. 1. or 2. requires bids to be solicited, the department either shall solicit sealed bids to be opened publicly at a specified date and time, or shall solicit bidding by auction to be conducted electronically at a specified date and time. Whenever bids are invited, due notice inviting bids shall be published as a class 2 notice, under ch. 985 or posted on the Internet at a site determined or approved by the department. The bid opening or auction shall occur at least 7 days after the date of the last insertion of the notice or at least 7 days after the date of posting on the Internet. The notice shall specify whether sealed bids are invited or bids will be accepted by auction, and shall give a clear description of the materials, supplies, equipment, or contractual services to be purchased, the amount of any bond, share draft, check, or other draft to be submitted as surety with the bid or prior to the auction, and the date and time that the public opening or the auction will be held.

16.75(1)(c) (c) Except as provided in par. (b) 2. and sub. (7), when the estimated cost is $25,000 or less, the award may be made in accordance with simplified procedures established by the department for such transactions.

16.75(1)(cm) (cm) If bids are solicited by auction, the award may be made in accordance with simplified competitive procedures established by the department for such transactions.

16.75(1m) (1m) The department shall award each order or contract for materials, supplies or equipment on the basis of life cycle cost estimates, whenever such action is appropriate. Each authority other than the University of Wisconsin Hospitals and Clinics Authority, the Lower Fox River Remediation Authority, and the Wisconsin Aerospace Authority shall award each order or contract for materials, supplies or equipment on the basis of life cycle cost estimates, whenever such action is appropriate. The terms, conditions and evaluation criteria to be applied shall be incorporated in the solicitation of bids or proposals. The life cycle cost formula may include, but is not limited to, the applicable costs of energy efficiency, acquisition and conversion, money, transportation, warehousing and distribution, training, operation and maintenance and disposition or resale. The department shall prepare documents containing technical guidance for the development and use of life cycle cost estimates, and shall make the documents available to local governmental units.

16.75(1p) (1p) 

16.75(1p)(a) (a) In this subsection:

16.75(1p)(a)1. 1. “Agreement with a labor organization” means any agreement with a labor organization, including a collective bargaining agreement, a project labor agreement, or a community workforce agreement.

16.75(1p)(a)2. 2. “Bidder” means a person that is submitting a bid or a competitive sealed proposal or that is seeking an award under this section in a procedure established under sub. (1) (c).

16.75(1p)(a)3. 3. “Labor organization” has the meaning given in s. 5.02 (8m).

16.75(1p)(b) (b) The department may not do any of the following in a solicitation for bids or competitive sealed proposals or in a procedure established under sub. (1) (c):

16.75(1p)(b)1. 1. Require that a bidder enter into or adhere to an agreement with a labor organization.

16.75(1p)(b)2. 2. Consider as a factor in making an award under this section whether any bidder has or has not entered into an agreement with a labor organization.

16.75(1p)(b)3. 3. Require that a bidder enter into, adhere to, or enforce any agreement that requires, as a condition of employment, that the bidder or bidder’s employees become or remain members of, or be affiliated with, a labor organization or pay any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization or a labor organization’s health, welfare, retirement, or other benefit plan or program.

16.75(1p)(c) (c) Nothing in this subsection prohibits employers or employees from entering into agreements or engaging in any other activity protected by the National Labor Relations Act, 29 USC 151 to 169.

16.75(2) (2) 

16.75(2)(a) (a) When the department of administration believes that it is to the best interests of the state to purchase certain patented or proprietary articles, other than printing and stationery, it may purchase said articles without the usual statutory procedure but all equipment shall be purchased from the lowest and best bidder as determined by the bids and a comparison of any detailed specifications submitted with the bids, and after due notice, whenever notice is required under this section. Where the low bid or bids are rejected, a complete written record shall be compiled and filed, giving the reasons in full for such action.

16.75(2)(b) (b) When the department determines that utility services are available only from a sole source as a result of regulation or of a natural monopoly, these services may be obtained without compliance with the usual procedure under this section.

16.75(2g) (2g) 

16.75(2g)(a) (a) The purchasing authority under s. 16.71 (2) may make purchases for products of and goods for resale by prison industries, other than purchases of printing or stationery, without inviting bids and without accepting the lowest responsible bid.

16.75(2g)(b) (b) The purchasing authority shall notify the governor prior to any purchase under par. (a) which exceeds $15,000. The governor has 72 hours, excluding Saturday, Sunday or a legal holiday, in which to veto any such purchase.

16.75(2g)(c) (c) No notice is required for purchases by prison industries under this subsection. All other purchasing rules and procedures apply to prison industries purchases.

16.75(2m) (2m) 

16.75(2m)(a) (a) Except as otherwise required by law, if the secretary or his or her designee determines that the use of competitive sealed bidding is not practicable or not advantageous to this state, the department may solicit competitive sealed proposals. Each request for competitive sealed proposals shall state the relative importance of price and other evaluation factors.

16.75(2m)(b) (b)

16.75(2m)(b)1. 1. Except as provided in subd. 2., when the estimated cost exceeds $25,000, the department may invite competitive sealed proposals.

16.75(2m)(b)2. 2. Competitive sealed proposals are not required if the estimated cost does not exceed $50,000.

16.75(2m)(b)3. 3. If competitive sealed proposals are invited, the department shall publish a class 2 notice under ch. 985 or post notice on the Internet at a site determined or approved by the department. The notice shall describe the materials, supplies, equipment, or contractual services to be purchased, the intent to make the procurement by solicitation of proposals rather than by solicitation of bids, any requirement for surety and the date the proposals will be opened, which shall be at least 7 days after the date of the last insertion of the notice or at least 7 days after the date of posting on the Internet.

16.75(2m)(c) (c) When the estimated cost is $25,000 or less, the department may award the order or contract in accordance with simplified procedures established by the department for such transactions.

16.75(2m)(d) (d) For purposes of clarification, the department may discuss the requirements of the proposed order or contract with any person who submits a proposal and shall permit any offerer to revise his or her proposal to ensure its responsiveness to those requirements.

16.75(2m)(e) (e) The department shall determine which proposals are reasonably apt to be awarded the order or contract and shall provide each offerer of such a proposal a fair and equal opportunity to discuss the proposal. The department may negotiate with each offerer in order to obtain terms that are advantageous to this state. Prior to the award of the order or contract, any offerer may revise his or her proposal. The department shall keep a written record of all meetings, conferences, oral presentations, discussions, negotiations and evaluations of proposals under this section.

16.75(2m)(f) (f) In opening, discussing and negotiating proposals, the department may not disclose any information that would reveal the terms of a competing proposal.

16.75(2m)(g) (g) After receiving each offerer’s best and final offer, the department shall determine which proposal is most advantageous and shall award the order or contract to the person who offered it. The department’s determination shall be based only on price and the other evaluation factors specified in the request for proposals. The department shall state in writing the reason for the award and shall place the statement in the contract file. This paragraph does not apply to procurements under s. 16.751.

16.75(2m)(h) (h) Following the award of the order or contract, the department shall prepare a register of all proposals.

16.75(2m)(i) (i) This subsection does not apply to the purchase of printing or stationery.

16.75(3) (3) The department may let contracts in excess of funds available. Except in the cases to which s. 18.10 (1) applies, any such contract shall state in substance that its continuance beyond the limits of funds already available is contingent upon appropriation of the necessary funds. Contracts may be for any term deemed to be in the best interests of the state but the terms and provisions for renewal or extension, if any, shall be incorporated in the bid specifications and the contract document.

16.75(3m) (3m) 

16.75(3m)(a) (a) In this subsection:

16.75(3m)(a)1. 1. “Disabled veteran-owned business” means a business certified by the department of administration under s. 16.283 (3).

16.75(3m)(a)2. 2. “Disabled veteran-owned financial adviser” means a financial adviser certified by the department of administration under s. 16.283 (3).

16.75(3m)(a)3. 3. “Disabled veteran-owned investment firm” means an investment firm certified by the department of administration under s. 16.283 (3).

16.75(3m)(a)4. 4. “Minority business” means a business certified by the department of administration under s. 16.287 (2).

16.75(3m)(b) (b)

16.75(3m)(b)1. 1. The department, any agency to which the department delegates purchasing authority under s. 16.71 (1), and any agency making purchases under s. 16.74 shall attempt to ensure that 5 percent of the total amount expended under this subchapter in each fiscal year is paid to minority businesses.

16.75(3m)(b)2. 2. The department, any agency to which the department delegates purchasing authority under s. 16.71 (1), and any agency making purchases under s. 16.74 shall attempt to ensure that at least 1 percent of the total amount expended under this subchapter in each fiscal year is paid to disabled veteran-owned businesses.

16.75(3m)(b)3. 3. Except as provided under sub. (7), the department, any agency to which the department delegates purchasing authority under s. 16.71 (1), and any agency making purchases under s. 16.74 may purchase materials, supplies, equipment, and contractual services from any minority business or disabled veteran-owned business, or a business that is both a minority business and a disabled veteran-owned business, submitting a qualified responsible competitive bid that is no more than 5 percent higher than the apparent low bid or competitive proposal that is no more than 5 percent higher than the most advantageous proposal. In administering the preference for minority businesses or disabled veteran-owned businesses established in this paragraph, the department, the delegated agency, and any agency making purchases under s. 16.74 shall maximize the use of minority businesses or disabled veteran-owned businesses which are incorporated under ch. 180 or which have their principal place of business in this state.

16.75(3m)(c) (c)

16.75(3m)(c)1. 1. After completing any contract under this subchapter, the contractor shall report to the agency that awarded the contract any amount of the contract that was subcontracted to minority businesses and any amount of the contract that was subcontracted to disabled veteran-owned businesses.

16.75(3m)(c)2. 2. Each agency shall report to the department at least semiannually, or more often if required by the department, all of the following for the reporting period specified by the department:

16.75(3m)(c)2.a. a. The total amount of money it has expended for contracts and orders awarded to minority businesses.

16.75(3m)(c)2.b. b. The total amount of money and the percentage of the total amount of money it has expended for contracts and orders awarded to disabled veteran-owned businesses.

16.75(3m)(c)2.c. c. The number of contacts with minority businesses in connection with proposed purchases.

16.75(3m)(c)2.d. d. The number of contacts with disabled veteran-owned businesses in connection with proposed purchases.

16.75(3m)(c)3. 3. The department shall maintain and annually publish data on state purchases from minority businesses and on state purchases from disabled veteran-owned businesses, including amounts expended and the percentage of total expenditures awarded to minority businesses and amounts expended and the percentage of total expenditures awarded to disabled veteran-owned businesses.

16.75(3m)(c)4. 4. The department shall annually prepare and submit a report to the governor and to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), on the total amount of money paid to and the amount of indebtedness or other obligations underwritten by minority businesses, minority financial advisers, minority investment firms, disabled veteran-owned businesses, disabled veteran-owned financial advisers, and disabled veteran-owned investment firms under the requirements of this subsection and ss. 16.855 (10m), 16.87 (2), 25.185, 84.075 and 565.25 (2) (a) 3. and on this state’s progress toward achieving compliance with par. (b) and ss. 16.855 (10m) (am) and (10n), 16.87 (2), 25.185, and 84.075 (1m). The report shall also include the percentage of the total amount of money paid to and the percentage of the total amount of indebtedness or other obligations underwritten by disabled veteran-owned businesses, disabled veteran-owned financial advisers, and disabled veteran-owned investment firms. In calculating the percentages to be reported under this subsection, the department shall exclude any purchase or contract for which a preference would violate any federal law or regulation or any contract between an agency and a federal agency or any contract that would result in a reduction in the amount of federal aids received by this state.

16.75(3m)(c)5. 5.

16.75(3m)(c)5.a. a. In determining whether a purchase, contract, or subcontract complies with the goal established under par. (b) 1. or 2. or s. 16.855 (10m) (am) 1. or 2., 16.87 (2) (b) or (c), or 25.185 (2) (a) or (b), the department shall include only amounts paid to businesses, financial advisers, and investment firms certified by the department of administration under s. 16.283 or 16.287 (2), whichever is appropriate.

16.75(3m)(c)5.b. b. In determining whether a purchase, contract, or subcontract is made with a disabled veteran-owned business, the department shall include only amounts paid to disabled veteran-owned businesses certified by the department of administration under s. 16.283 (3).

16.75(3t) (3t) 

16.75(3t)(a) (a) In this subsection, “form” has the meaning given under s. 16.97 (5p).

16.75(3t)(b) (b) All commodities required to be furnished by the department which are produced at the institutions of the state shall be purchased from the institutions if the commodities conform to the specifications prepared by the department.

16.75(3t)(c) (c) The department of corrections shall periodically provide to the department of administration a current list of all materials, supplies, equipment or contractual services, excluding commodities, that are supplied by prison industries, as created under s. 303.01. The department of administration shall distribute the list to all designated purchasing agents under s. 16.71 (1). Except as otherwise provided in sub. (6) (ag) or (am), prior to seeking bids or competitive sealed proposals with respect to the purchase of any materials, supplies, equipment or contractual services enumerated in the list, the department of administration or any other designated purchasing agent under s. 16.71 (1) shall offer prison industries the opportunity to supply the materials, supplies, equipment or contractual services if the department of corrections is able to provide them at a price that is comparable to one which may be obtained through competitive bidding or competitive sealed proposals and is able to conform to the specifications. If the department of administration or other purchasing agent is unable to determine whether the price of prison industries is comparable to one obtained through competitive bidding or competitive sealed proposals, it may solicit bids or competitive proposals before awarding the order or contract. This paragraph does not apply to the printing of the following forms:

16.75(3t)(c)2. 2. Forms the use of which is required by federal law.

16.75(3t)(c)3. 3. Forms used by teachers to evaluate a student’s academic performance.

16.75(3t)(c)4. 4. Forms used by hospitals and health care providers to bill or collect from patients and 3rd parties.

16.75(3t)(c)5. 5. Forms used by medical personnel in the treatment of patients.

16.75(3t)(c)7. 7. Forms that are not public contact forms.

16.75(4) (4) 

16.75(4)(a) (a) The department shall encourage the participation of small businesses and veteran-owned businesses in the statewide purchasing program by ensuring that there are no undue impediments to such participation and by actively encouraging small businesses and veteran-owned businesses to play an active role in the solicitation of purchasing business by agencies. To that end the department shall:

16.75(4)(a)1. 1. Maintain comprehensive lists of small businesses and of veteran-owned businesses located in this state which have indicated a willingness to provide materials, supplies, equipment or contractual services to the state.

16.75(4)(a)2. 2. Develop ways of simplifying specifications and terms so that they will not impose unnecessary administrative burdens on small businesses and veteran-owned businesses located in this state which submit bids or proposals to the state.

16.75(4)(a)3. 3. Assist small businesses and veteran-owned businesses located in this state in complying with the state’s competitive bidding and competitive proposal procedures.

16.75(4)(a)4. 4. Notify businesses on the lists maintained under subd. 1. of agency purchasing requests for which the businesses may wish to submit a bid or proposal.

16.75(4)(a)5. 5. By October 1 of each year, submit a report to the council on small business, veteran-owned business and minority business opportunities which evaluates the performance of small businesses located in this state in submitting bids or proposals to the state and makes recommendations for increased involvement of such businesses in submitting competitive bids and proposals under this section.

16.75(4)(b) (b) The department shall seek the cooperation and assistance of the department of safety and professional services in the performance of its duties under par. (a).

16.75(4)(c) (c) In this section and s. 16.755, “small business” means a business which has had less than $1.5 million in gross annual sales in the most recent calendar or fiscal year.

16.75(4)(d) (d) In this subsection and s. 16.755, “veteran-owned business” means a small business, as defined in par. (c), that is certified by the department of veterans affairs as being at least 51 percent owned by one or more veterans, as defined in s. 45.01 (12).