Chapter 16

16.752(12)(h) (h) Paragraph (a) does not apply to purchases of printing or stationery.

16.752(12)(i) (i) Paragraph (a) does not apply to procurements by the department relating to information technology or telecommunications.

16.752(12)(j) (j) Paragraph (a) does not apply to services purchased under a contract under s. 153.05 (2m) (a).

16.752(13) (13) Certificates of exception.

16.752(13)(a) (a) Grant written authorization to an ordering agency to procure materials, supplies, equipment or services on the list maintained under sub. (2) (g) from commercial sources when all of the following conditions are met:

16.752(13)(a)1. 1. The work center to which the order is assigned cannot furnish a material, supply, piece of equipment or service within the period specified in the order.

16.752(13)(a)2. 2. The material, supply, equipment or service is available from commercial sources in the quantities and at an earlier time than it is available from the work center to which the order is assigned.

16.752(13)(b) (b) Issue an authorization to an ordering agency to procure materials, supplies, equipment or services from commercial sources when the quantity involved is not sufficient for the economical production or provision by the work center to which the order is assigned.

16.752(13)(c) (c) Issue authorizations under pars. (a) and (b) promptly upon request of an ordering agency. The authorization shall be in the form of a certificate which shall specify the quantities and delivery period covered by the authorization. The organization shall transmit a copy of each certificate to the board.

16.752(14) (14) Prices.

16.752(14)(a) (a) All prices included in the list maintained under sub. (2) (g) shall be determined by the board on the basis of fair market prices for materials, supplies, equipment or services similar to those supplied by work centers.

16.752(14)(b) (b) Prices for materials, supplies or equipment shall include delivery and packaging, packing and marketing costs.

16.752(14)(c) (c) Price changes for materials, supplies or equipment shall apply to all orders placed on or after the effective date of the change.

16.752(14)(d) (d) Delivery of an order is accomplished when a shipment is received and accepted by the purchasing agency.

16.752(15) (15) Adjustment and cancellation of orders. If a work center fails to comply with the terms of an order from an agency, the ordering agency shall make every effort to negotiate adjustments before canceling the order.

16.752(17) (17) Quality control.

16.752(17)(a) (a) Materials, supplies and equipment furnished by work centers under specifications issued by an agency shall be manufactured by work centers in strict accordance with the specifications.

16.752(17)(b) (b) Services provided by work centers under specifications issued by an agency shall be performed by work centers in strict accordance with the specifications. If no specifications exist, the services shall be performed by work centers in accordance with good commercial practices.

16.752(17)(c) (c) If the quality of a material, supply, piece of equipment or service received from a work center is not satisfactory to the contracting agency, the agency shall advise the board and, if the board determines that the quality of the material, supply, equipment or service is unsatisfactory, the board shall suspend the eligibility of the work center which provided the material, supply or equipment or which performed the service to participate in the program established under this section.

16.752(18) (18) Specification changes.

16.752(18)(a) (a) The board may change specifications contained in the list maintained under sub. (2) (g). Each list shall contain a basic specification and the date of the latest revision.

16.752(18)(b) (b) If an agency makes substantial changes in a specification on the list maintained under sub. (2) (g) the board shall assign a new item number. The agency shall notify the board of the changes prior to their effective date.

16.752 History History: 1989 a. 345; 1991 a. 32, 39; 1993 a. 16, 17; 1995 a. 27 ss. 383b, 384, 9116 (5); 2001 a. 16; 2003 a. 33; 2011 a. 32.

16.752 Note NOTE: See 1989 Wis. Act 345, which created this section, for a statement of legislative purpose.

16.754 16.754 Preference for American-made materials.

16.754(1) (1) Definitions. As used in this section:

16.754(1)(a) (a) “Manufactured” means mined, produced, manufactured, fabricated or assembled.

16.754(1)(b) (b) “Manufactured in the United States” means that materials are manufactured in whole or in substantial part within the United States or that the majority of the component parts thereof were manufactured in whole or in substantial part in the United States.

16.754(1)(c) (c) “Materials” means any goods, supplies, equipment or any other tangible products or materials.

16.754(1)(d) (d) “Purchase” means acquire by purchase or lease.

16.754(1)(e) (e) “State” means the state of Wisconsin or any agency thereof, a contractor acting pursuant to a contract with the state, and any person acting on behalf of the state or any agent thereof.

16.754(2) (2) Purchase preference. Notwithstanding s. 16.75 (1) (a) 2., (2), (2m) and (6), when all other factors are substantially equal the state shall purchase materials which are manufactured to the greatest extent in the United States.

16.754(3) (3) Exemptions. Subsection (2) does not apply if the materials are purchased for the purpose of commercial resale or for the purpose of use in the production of goods for commercial sale. Subsection (2) does not apply to the purchase of stationery and printing materials. Subsection (2) does not apply if the department determines, under s. 16.75 (1) (a) 2., that the foreign nation or subdivision thereof in which the vendor is domiciled does not give preference to vendors domiciled in that nation or subdivision in making governmental purchases. Subsection (2) does not apply if the department or other person having contracting authority in respect to the purchase determines that:

16.754(3)(a) (a) The materials are not manufactured in the United States in sufficient or reasonably available quantities; or

16.754(3)(b) (b) The quality of the materials is substantially less than the quality of similar available materials manufactured outside of the United States.

16.754 History History: 1979 c. 314; 1983 a. 27 s. 2202 (1); 1987 a. 27.

16.755 16.755 Council on small business, veteran-owned business and minority business opportunities. The council on small business, veteran-owned business and minority business opportunities shall:

16.755(1) (1) Review the extent of small business, veteran-owned business and minority business participation in purchasing by this state and its agencies.

16.755(2) (2) Advise the department’s purchasing agent with respect to methods of increasing such participation.

16.755(3) (3) Advise the department’s purchasing agent with respect to methods of simplifying or easing compliance with the forms and procedures used or to be used for obtaining contracts with the state for providing materials, supplies, equipment and contractual services.

16.755(4) (4) Advise the department concerning methods of improved compliance with any aspect of its duties under s. 16.75 (4) (a).

16.755(5) (5) Annually, submit a report containing any recommendations regarding the matters described in subs. (1) to (4) to the governor and the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2).

16.755 History History: 1977 c. 418 s. 929 (55); 1977 c. 419; 1983 a. 27, 524; 1985 a. 29 s. 3200 (1); 1987 a. 186; 1991 a. 170.

16.76 16.76 Form of contracts; continuing contracts.

16.76(1) (1) All contracts for materials, supplies, equipment or contractual services to be provided to any agency shall run to the state of Wisconsin. Such contracts shall be signed by the secretary or an individual authorized by the secretary, except that contracts entered into directly by the legislature, the courts or a legislative service or judicial branch agency shall be signed by an individual authorized under s. 16.74 (2) (b).

16.76(3) (3) 

16.76(3)(a) (a) Prices established in a continuing contract to provide materials, supplies, equipment or contractual services over a period of time may be lowered due to general market conditions, but prices shall not be subject to increase for 90 calendar days from the date of award. The contractor shall submit any proposed price increase under a continuing contract to the department at least 30 calendar days before the proposed effective date of the price increase. Any price increase shall be limited to fully documented cost increases to the contractor which the contractor demonstrates to be industrywide. The conditions under which price increases may be granted shall be expressed in bidding documents and contracts.

16.76(3)(b) (b) The department may accept, negotiate or reject any proposed price increase. Upon rejection, the contractor may exercise any termination clause which has been incorporated into the contract.

16.76(4) (4) 

16.76(4)(a) (a) In this subsection, “master lease” means an agreement entered into by the department on behalf of one or more agencies to obtain property or services under which the department makes or agrees to make periodic payments.

16.76(4)(ag) (ag) The department may pay or agree to pay under a master lease a sum substantially equivalent to or in excess of the aggregate value of property or services obtained and it may be agreed that the department or one or more agencies will become, or for no other or nominal consideration has the option to become, the owner of property obtained or to be obtained under a master lease upon full compliance with its terms.

16.76(4)(b) (b) Except as provided in par. (h), the department may enter into a master lease whenever the department determines that it is advantageous to the state to do so. If the master lease provides for payments to be made by the state from moneys that have not been appropriated at the time that the master lease is entered into, the master lease shall contain the statement required under s. 16.75 (3).

16.76(4)(c) (c) Payments under a master lease may include interest payable at a fixed or variable rate as the master lease may provide. The department may enter into agreements and ancillary arrangements which the department determines to be necessary to facilitate the use of a master lease.

16.76(4)(d) (d) The department may delegate to other persons the authority and responsibility to take actions necessary and appropriate to implement agreements and ancillary arrangements under par. (c).

16.76(4)(e) (e) The department may grant a perfected security interest in property obtained or to be obtained under a master lease. The department shall record and preserve evidence of the security interest in its offices at all times during which the master lease is in effect.

16.76(4)(f) (f) The department may appoint one or more fiscal agents for each master lease. Each fiscal agent shall be an incorporated bank or trust company authorized by the laws of the United States or of the state in which it is located to do business as a banking or trust company. The department shall periodically require competitive proposals, under procedures established by the department, for fiscal agent services under this paragraph. There may be deposited with a fiscal agent, in a special account for such purpose only, a sum estimated to be sufficient to enable the fiscal agent to make all payments which will come due under the master lease not more than 15 days after the date of deposit. The department may make such other provisions respecting fiscal agents as it considers necessary or useful and may enter into a contract with any fiscal agent containing such terms, including compensation, and conditions in regard to the fiscal agent as it considers necessary or useful.

16.76(4)(g) (g) Sections 16.705 and 16.75 do not apply to agreements or ancillary agreements under par. (c) or contracts for fiscal agent services under par. (f).

16.76(4)(h) (h) A master lease may not be used to obtain a facility for use or occupancy by the state or an agency or instrumentality of the state or to obtain an internal improvement.

16.76(4)(j) (j) If a master lease is used to finance payments to be made under an energy conservation construction project as provided in s. 16.858 (2), payments under the lease may not be conditioned upon any payment required to be made by the contractor pursuant to an energy conservation audit.

16.76 History History: 1973 c. 333; 1977 c. 196 s. 130 (3); 1979 c. 34; 1983 a. 27; 1985 a. 29; 1987 a. 119, 142; 1989 a. 31; 1991 a. 39; 1993 a. 496; 1995 a. 27; 1999 a. 9.

16.765 16.765 Nondiscriminatory contracts.

16.765(1) (1) Contracting agencies, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation shall include in all contracts executed by them a provision obligating the contractor not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation as defined in s. 111.32 (13m), or national origin and, except with respect to sexual orientation, obligating the contractor to take affirmative action to ensure equal employment opportunities.

16.765(2) (2) Contracting agencies, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation shall include the following provision in every contract executed by them: “In connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01 (5), sexual orientation or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities. The contractor agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause”.

16.765(3) (3) Subsections (1) and (2) shall not apply to contracts to meet special requirements or emergencies, if approved by the department.

16.765(4) (4) Contracting agencies, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, and the Bradley Center Sports and Entertainment Corporation shall take appropriate action to revise the standard government contract forms under this section.

16.765(5) (5) The head of each contracting agency and the boards of directors of the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation shall be primarily responsible for obtaining compliance by any contractor with the nondiscrimination and affirmative action provisions prescribed by this section, according to procedures recommended by the department. The department shall make recommendations to the contracting agencies and the boards of directors of the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, and the Bradley Center Sports and Entertainment Corporation for improving and making more effective the nondiscrimination and affirmative action provisions of contracts. The department shall promulgate such rules as may be necessary for the performance of its functions under this section.

16.765(6) (6) The department may receive complaints of alleged violations of the nondiscrimination provisions of such contracts. The department shall investigate and determine whether a violation of this section has occurred. The department may delegate this authority to the contracting agency, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation for processing in accordance with the department’s procedures.

16.765(7) (7) When a violation of this section has been determined by the department, the contracting agency, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation, the contracting agency, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation shall:

16.765(7)(a) (a) Immediately inform the violating party of the violation.

16.765(7)(b) (b) Direct the violating party to take action necessary to halt the violation.

16.765(7)(c) (c) Direct the violating party to take action necessary to correct, if possible, any injustice to any person adversely affected by the violation.

16.765(7)(d) (d) Direct the violating party to take immediate steps to prevent further violations of this section and to report its corrective action to the contracting agency, the University of Wisconsin Hospitals and Clinics Authority, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation.

16.765(8) (8) If further violations of this section are committed during the term of the contract, the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation may permit the violating party to complete the contract, after complying with this section, but thereafter the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation shall request the department to place the name of the party on the ineligible list for state contracts, or the contracting agency, the Fox River Navigational System Authority, the Wisconsin Aerospace Authority, the Lower Fox River Remediation Authority, the Wisconsin Economic Development Corporation, or the Bradley Center Sports and Entertainment Corporation may terminate the contract without liability for the uncompleted portion or any materials or services purchased or paid for by the contracting party for use in completing the contract.

16.765(9) (9) The names of parties who have had contracts terminated under this section shall be placed on an ineligible list for state contracts, maintained by the department. No state contract may be approved and let to any party on such list of ineligible contractors. The department may remove the name of any party from the ineligible list of contractors if the department determines that the contractor’s employment practices comply with this section and provide adequate safeguards for its observance.

16.765(10) (10) The department shall refer any individual complaints of discrimination which are subject to investigation under subch. II of ch. 111 to the department of workforce development.

16.765(11) (11) A violation by a prime contractor shall not impute to a subcontractor nor shall a violation by a subcontractor impute to a contractor.

16.765 History History: 1975 c. 94, 189, 275, 422; 1977 c. 29, 418; 1981 c. 112; 1981 c. 334 s. 25 (2); 1981 c. 391 s. 210; 1985 a. 26; 1985 a. 29 s. 3200 (1); 1995 a. 27 ss. 386 to 389, 9130 (4); 1995 a. 225; 1997 a. 3; 2001 a. 16; 2005 a. 74, 335; 2007 a. 20, 97; 2009 a. 28; 2011 a. 7, 10; 2013 a. 20; 2013 a. 173 s. 33.

16.765 Cross-reference Cross-reference: See also ch. Adm 50, Wis. adm. code.

16.765 Annotation Cities, counties, and other local governmental entities are not “contracting agencies” under sub. (1). 68 Atty. Gen. 306.

16.767 16.767 Setoffs. All amounts owed by this state under this subchapter are subject to being set off under s. 73.12.

16.767 History History: 1985 a. 29.

16.77 16.77 Audit of bills; illegal contracts; actions to recover.

16.77(1) (1) No bill or statement for work or labor performed under purchase orders or contracts issued by the secretary or the secretary’s designated agents, and no bill or statement for supplies, materials, equipment or contractual services purchased for and delivered to any agency may be paid until the bill or statement is approved through a preaudit or postaudit process determined by the secretary. This subsection does not apply to purchases made directly by the courts, the legislature or a legislative service or judicial branch agency under s. 16.74.

16.77(2) (2) Whenever any officer or any subordinate of an officer contracts for the purchase of supplies, material, equipment or contractual services contrary to ss. 16.705 to 16.82 or the rules promulgated pursuant thereto, the contract is void, and any such officer or subordinate is liable for the cost thereof, and if such supply, material, equipment or contractual services so unlawfully purchased have been paid for out of public moneys, the amount thereof may be recovered in the name of the state in an action filed by the attorney general against the officer or subordinate and his or her bonders. Such cause of action is deemed to have arisen in Dane County, and summons shall be served therein as in civil actions.

16.77 History History: 1979 c. 221; 1981 c. 20 s. 2202 (1) (c); 1985 a. 29; 1985 a. 332 s. 251 (5); 1987 a. 119; 1991 a. 39.

16.78 16.78 Purchases from department relating to information technology or telecommunications.

16.78(1) (1) Every agency other than the board of regents of the University of Wisconsin System, the University of Wisconsin-Madison, or an agency making purchases under s. 16.74 shall make all purchases of materials, supplies, equipment, and contractual services relating to information technology or telecommunications from the department, unless the department requires the agency to purchase the materials, supplies, equipment, or contractual services pursuant to a master contract established under s. 16.972 (2) (h), or grants written authorization to the agency to procure the materials, supplies, equipment, or contractual services under s. 16.75 (1) or (2m), to purchase the materials, supplies, equipment, or contractual services from another agency or to provide the materials, supplies, equipment, or contractual services to itself. The board of regents of the University of Wisconsin System and the University of Wisconsin-Madison may make purchases of materials, supplies, equipment, and contractual services relating to information technology or telecommunications from the department.

16.78(2) (2) Sections 16.705 to 16.767 and 16.77 (1) do not apply to the purchase of materials, supplies, equipment, or contractual services by any agency from the department under sub. (1).

16.78 History History: 1991 a. 39; 2001 a. 16, 104; 2003 a. 33; 2011 a. 32; 2013 a. 20 ss. 2365m, 9448.