16.85516.855 Construction project contracts. 16.855(1g)(ag)(ag) “Board of Regents” means the Board of Regents of the University of Wisconsin System. 16.855(1g)(ar)(ar) “Mechanical, electrical, or plumbing subcontractor” is a contractor that performs mechanical, electrical, plumbing, or fire protection work and enters into a contract with a general prime contractor to perform their division of work. 16.855(1g)(c)(c) “Qualified responsible bidder” means a person who is a qualified bidder and who is a responsible bidder. 16.855(1g)(e)(e) “Single prime contracting” means bidding and contracting through a process in which only a general prime contractor has a contractual relationship with the state and all mechanical, electrical, or plumbing subcontractors are identified by the department or the Board of Regents and are subcontractors to the general prime contractor. 16.855(1g)(ec)(ec) “Single trade contractor” means a contractor whose primary business is the performance of a trade. 16.855(1g)(em)(em) “Trade” means mechanical, electrical, plumbing, or fire protection work. 16.855(1g)(f)(f) “UW gifts and grants project” means a construction project funded entirely with gifts and grants made to the University of Wisconsin System. 16.855(1m)(1m) The department shall let by contract to the lowest qualified responsible bidder all construction work when the estimated construction cost of the project exceeds $50,000, except for construction work authorized under s. 16.858 and except as provided in sub. (1r) or (10m) or s. 13.48 (19). Beginning in fiscal year 2023-24, this amount is $100,000. If factors other than dollar amounts are required to be evaluated for a project, the department shall specify a formula that will convert the other factors into a dollar value for comparison. 16.855(1p)(b)(b) The department may not do any of the following in a solicitation for bids under this section: 16.855(1p)(b)1.1. Require that a bidder enter into or adhere to an agreement with a labor organization. 16.855(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. 16.855(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. 16.855(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. 16.855(1r)(1r) 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 $50,000 or, beginning in fiscal year 2023-24, $100,000, 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)6.6. That the department shall consider only bids from persons who are responsible bidders and, unless sub. (9m) (ar) 2. applies, qualified bidders. 16.855(2)(b)1.1. Require that a guarantee of not less than 10 percent 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(9m)(ag)(ag) In this subsection, “bidder” includes a potential bidder. 16.855(9m)(ar)1.1. The department shall certify bidders as qualified bidders under par. (b) 1. and responsible bidders under par. (b) 2. and shall administer a registration process for all bidders submitting bids on any construction project under this section. The department shall issue, in a timely manner, a certification decision on a complete application for certification. A certification under this subdivision is valid for 2 years except the department may decertify a bidder if the department determines that the bidder no longer meets the qualifications under par. (b) and if the department follows a decertification process developed by rule that provides to the bidder notice, hearing, and a means to appeal. 16.855(9m)(ar)2.2. Notwithstanding sub. (1m) or (14) (d), the department may waive the condition of certification as a qualified bidder if the project is of such magnitude as to limit competition if the conditions under par. (b) 1. were required. 16.855(9m)(ar)3.3. The department shall consider for certification under par. (b) associations consisting of at least 2 contracting firms that are organized for the purpose of entering into a construction contract as a single entity if at least one of the contracting firms is qualified under par. (b) and if the assignment of, and provisions for the continuity of, the various responsibilities within the association are agreed upon before the contract is awarded. 16.855(9m)(b)1.1. To be certified as a qualified bidder, a bidder must meet all of the following conditions: 16.855(9m)(b)1.a.a. The bidder has completed at least one project that involved similar work to the work being bid and the project was at least 50 percent of the size or value of the division of the project being bid. If the department determines that more experience is necessary for a particular project, the department may include additional requirements in the specifications and certify bidders accordingly. 16.855(9m)(b)1.b.b. The bidder has access to all necessary equipment and the organizational capacity and technical competence necessary to perform the project work properly and expeditiously. 16.855(9m)(b)1.c.c. If the department so requires or the bidder will be considered unqualified, the bidder has submitted a sworn statement as to financial ability, equipment, and experience in construction and other information as may be necessary to determine the bidder’s competency. 16.855(9m)(b)2.2. To be certified as a responsible bidder, a bidder must meet all of the following conditions: 16.855(9m)(b)2.b.b. The bidder submits a sworn statement, upon the department’s request, that indicates that the bidder has adequate financial resources to complete the work being bid, taking into account any other work the bidder is currently under contract to complete. 16.855(9m)(b)2.c.c. The bidder is bondable for the term of the proposed contract and is able to obtain a 100 percent performance bond and a separate 100 percent payment bond. 16.855(9m)(b)2.d.d. The bidder has a record of satisfactorily completing projects. In determining this factor, the department shall consider if the bidder has completed all contracts in accordance with drawings and specifications; diligently pursued execution of the work and completed contracts according to the time schedule, taking account of extensions granted; fulfilled guarantee requirements of contracts; if the contract included an affirmative action program requirement, complied with the requirement; and, if the contract included a safety program requirement, complied with the requirement. 16.855(9m)(b)2.e.e. The bidder is not on an ineligible list that the department maintains under s. 16.705 (9) or 16.765 (9) or on a list that another agency maintains for persons who violated construction-related statutes or administrative rules. 16.855(9m)(b)2.g.g. The bidder is a legal entity and authorized to do business in Wisconsin. 16.855(9m)(b)2.h.h. The bidder has performed at least one other public project for a government entity. 16.855(9m)(b)2.i.i. The bidder can provide information, upon request, to the department on the bidder’s ownership, management, and control. 16.855(9m)(b)2.j.j. In any jurisdiction, the bidder, in the previous 10 years, has not been debarred from any government contracts and has not been found to have committed tax avoidance or evasion. 16.855(9m)(b)2.k.k. In any jurisdiction, in the previous 10 years, the bidder has not been disciplined under a professional license. 16.855(9m)(b)2.L.L. In any jurisdiction, none of the bidder’s employees and no member of the bidder’s organization has been disciplined under a professional license that is currently in use. 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)(ac)(ac) In this subsection, “disabled veteran-owned business” means a business certified by the department of administration under s. 16.283 (3). 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 attempt to ensure that at least 1 percent 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, if the business is a qualified responsible bidder and the business submits a 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(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 percent of the employees hired because of the contract will be minority group members and at least 5 percent 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)(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(12m)(12m) The Board of Regents may let UW gifts and grants projects through single prime contracting. If the Board of Regents lets a UW gifts and grants project through single prime contracting, this section does not apply to the project, except for subs. (13), (14), and (14m). 16.855(13)(a)1.1. In any project under this section let under single prime contracting, the department or the Board of Regents shall identify, as provided under par. (b), the mechanical, electrical, or plumbing subcontractors who have submitted the lowest bids and who are qualified responsible bidders. A general prime contractor who is submitting a bid under sub. (14) shall include the subcontractors so identified. 16.855(13)(a)2.2. In any project under this section that is let under s. 13.48 (19), the department shall identify, as provided under par. (b), the mechanical, electrical, or plumbing subcontractors who have submitted the lowest bids and who are qualified responsible bidders. The contractor awarded a contract under s. 13.48 (19) shall contract with the mechanical, electrical, or plumbing subcontractors so identified. 16.855(13)(b)(b) For purposes of identifying subcontractors under par. (a), the department or the Board of Regents shall develop and administer an open and public bidding process. The department shall follow the requirements and procedures under sub. (2). The Board of Regents shall follow the requirements and procedures specified for the department under sub. (2) and has the power specified for the department under sub. (6). Within 48 hours of the deadline for a mechanical, electrical, or plumbing contractor to submit a bid, the department or board shall post on its Internet site the names of the bidders and the amount of each bid. No more than 5 days after the deadline, the department or board shall post on its Internet site and provide public notice of the lowest bidders who are qualified responsible bidders. The department or board shall post on its Internet site the bids, including the bid documents, identified under this paragraph as the lowest bids and they shall be open to public inspection under s. 19.35 (1). No other bids under this paragraph may be on the Internet site or open to public inspection.
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