Indemnification. To the fullest extent permitted by law, (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others whom (general prime contractor) is required to indemnify under its contract with the (Department of Administration or Board of Regents), and the employees of any of them, from and against claims, damages, fines, penalties, losses, and expenses, including but not limited to attorney fees, arising in any way out of or resulting from the performance of the work under this contract, but only to the extent such claim, damage, fine, penalty, loss, or expense: (1) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of property, including but not limited to loss of use resulting therefrom and is caused by the negligence, or acts or omissions, of (mechanical, electrical, or plumbing subcontractor), its subcontractors, any of their employees, and anyone directly or indirectly employed by them or anyone for whose acts they may be liable, or (2) as related to such claims, damages, fines, penalties, losses, and expense of or against (general prime contractor), results from or arises out of the negligence of (general prime contractor) or other fault in providing general supervision or oversight of the work of (mechanical, electrical, or plumbing subcontractor) or (3) as related to claims, damages, fines, penalties, losses, and expense against the (Department of Administration or Board of Regents), arises out of the (department’s or board’s) status as owner of the project or project site.
In addition (mechanical, electrical, or plumbing subcontractor) shall defend, indemnify, and hold harmless (general prime contractor) and its officers, directors, agents, and any others (general prime contractor) is required to indemnify under its contract with the (Department of Administration or Board of Regents), and the employees of any of them, from any liability, including liability resulting from a violation of any applicable safe place act, that (general prime contractor) or the state incurs to any employee of (mechanical, electrical, or plumbing subcontractor) or any third party where the liability arises from a derivative claim from said employee, when the liability arises out of the failure of the (general prime contractor) or the state to properly supervise, inspect, or approve the work or work area of (mechanical, electrical, or plumbing subcontractor), but only to the extent that the liability arises out of the acts or omissions of (mechanical, electrical, or plumbing subcontractor), its employees, or anyone for whom (mechanical, electrical, or plumbing subcontractor) may be liable, or from (mechanical, electrical, or plumbing subcontractor’s) breach of its contractual responsibilities or arises out of (general prime contractor’s) negligence or other fault in providing general supervision or oversight of (mechanical, electrical, or plumbing subcontractor’s) work or arises out of the (Department of Administration’s or Board of Regents’) status as owner of the project or project site. In claims against (general prime contractor) or the state by an employee of (mechanical, electrical, or plumbing subcontractor) or its subcontractors or anyone for whose acts (mechanical, electrical, or plumbing subcontractor) may be liable, the indemnification obligation of this paragraph is not limited by a limitation on amount or type of damage, compensation, or other benefits payable by or for the (mechanical, electrical, or plumbing subcontractor) or its subcontractors under workers’ compensation act.
Except as identified above, the obligations of (mechanical, electrical, or plumbing subcontractor) under this indemnification do not extend to the liability of (general prime contractor) and its agents or employees arising out of (1) preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs, or specifications; (2) the giving of or failure to give directions or instructions by the (general prime contractor) or the (Department of Administration or Board of Regents) or their agents or employees provided the giving or failure to give is the cause of the injury or damage; or (3) the acts or omissions of other subcontractors.
Retainage. Retainage shall occur and be in amounts and on a schedule equal to that in the contract between (general prime contractor) and the (Department of Administration or Board of Regents).
16.855(14m)(b)(b) A contract entered into under sub. (14) (e) between a general prime contractor and a mechanical, electrical, or plumbing subcontractor must include a scope of work clause that is identical to the scope of work clause on which the mechanical, electrical, or plumbing subcontractor bid under sub. (13). 16.855(14m)(c)1.1. Except as provided in subd. 2., a general prime contractor and a mechanical, electrical, or plumbing subcontractor may not enter any agreement other than the contract entered into under sub. (14) (e) if the agreement is in connection with bids submitted under sub. (13) or (14) that would alter or affect the scope or price of the contract entered into under sub. (13) or (14) (e). 16.855(14m)(c)2.2. The prohibition under subd. 1. does not apply to change orders by the department or the Board of Regents that result in changes to the plans or specifications or to back charges allowed by the contract under sub. (13). 16.855(14m)(d)(d) The general prime contractor shall base its project schedule on the schedule in the specifications or bid instructions under sub. (2) (a) unless otherwise agreed to by the mechanical, electrical, or plumbing subcontractor. 16.855(14s)(a)(a) The department may let any construction project that exceeds $300,000 to a single trade contractor for all work on the project if at least 85 percent of the estimated construction cost of the project is for work that involves the trade that is the primary business of the single trade contractor. Beginning in fiscal year 2023-24, this amount is $600,000. 16.855(14s)(b)(b) The department and the Board of Regents shall each develop and implement an open and public bidding process for purposes of contracting with single trade contractors who have submitted the lowest bid on a project and who are qualified responsible bidders. For purposes of this paragraph, the department and the board shall follow the requirements and procedures under sub. (2). 16.855(14s)(c)(c) Within 48 hours after the deadline for a single trade contractor to submit a bid, the department or the Board of Regents shall post on its Internet site the tabulations of all bids that identify the names of the single trade contractors that bid and the amount of each bid and shall make the tabulations and amounts available at the department or board if they are unavailable on the Internet site. 16.855(14s)(d)(d) Except as provided in sub. (10m) (am), the department or the Board of Regents shall award all contracts under this subsection to the lowest bidder who is a qualified responsible bidder that results in the lowest total construction cost for the project. 16.855(14s)(e)(e) Within 30 days after the deadline for a single trade contractor to submit a bid, the department or the Board of Regents shall notify the single trade contractor bidder that was awarded the contract. 16.855(15)(15) The department shall promulgate rules to implement the advertising and award of contracts. 16.855(16)(a)(a) This section does not apply to contracts between the state and federal government or any agency thereof, or with any political subdivision of the state. Subject to the approval of the governor, the requirements of this section may be waived in emergency situations involving the public health, welfare or safety or with respect to contracting with public utilities, but only when any such waiver is deemed by the governor to be in the best interests of the state. 16.855(16)(b)2.2. In emergency situations, the governor may approve repairs and construction of a building, structure, or facility in lieu of building commission approval under s. 13.48 (10), and for such purposes, may authorize the expenditure of up to $500,000 from the state building trust fund or from other available moneys appropriated to an agency derived from any revenue source. The governor may delegate to the secretary the authority to grant approvals under this subdivision. The governor shall report any such authorization to the building commission at its next regular meeting following the authorization. In this subdivision, “emergency” means any natural or human-caused situation that results in or may result in substantial injury or harm to the population or substantial damage to or loss of property. 16.855(17)(17) This section does not apply to any project on which the work is to be performed by inmates or patients in institutions under the jurisdiction of the department of corrections or the department of health services working under the supervision or with the assistance of state employees. 16.855(18)(18) This section shall not apply to restoration or reconstruction of the state capitol building, historic structures at the old world Wisconsin site and at Heritage Hill state park when the department determines that a waiver of this section would serve the best interests of this state. 16.855(19)(a)(a) As the work progresses under any contract for construction of a project the department, from time to time, shall grant to the contractor an estimate of the amount and proportionate value of the work properly completed, which shall entitle the contractor to receive the amount, less the retainage, from the proper fund. The retainage shall be an amount equal to not more than 5 percent of the estimate until 50 percent of the work has been completed. At 50 percent completion, no additional amounts shall be retained, and partial payments shall be made in full to the contractor unless the department certifies that the job is not proceeding satisfactorily. At 50 percent completion or any time thereafter when the progress of the work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10 percent of the value of the work completed. Upon substantial completion of the work, any amount retained shall be paid to the contractor, less the value of any required corrective work or uncompleted work. For the purposes of this section, estimates may include any fabricated or manufactured materials and components specified, previously paid for by contractor and delivered to the work or properly stored and suitable for incorporation in the work embraced in the contract. 16.855(19)(b)(b) As the work progresses under any subcontract under sub. (14) (e) for construction of a project, the general prime contractor shall, upon request of a subcontractor, pay to the subcontractor an amount equal to the proportionate value of the subcontractor’s work properly completed, less retainage. The retainage shall be an amount equal to not more than 5 percent of the subcontractor’s work completed until 50 percent of the subcontractor’s work has been completed. At 50 percent completion, no additional amounts may be retained, and partial payments shall be made in full to the subcontractor unless the department or the Board of Regents certifies that the subcontractor’s work is not proceeding satisfactorily. At 50 percent completion or any time thereafter when the progress of the subcontractor’s work is not satisfactory, additional amounts may be retained but the total retainage may not be more than 10 percent of the value of the work completed. Upon substantial completion of the subcontractor’s work, any amount retained shall be paid to the subcontractor, less the value of any required corrective work or uncompleted work. All payments the general prime contractor makes under this paragraph shall be within 7 calendar days after the date on which the general prime contractor receives payment from the department or board. 16.855(20)(20) This section does not apply to construction work performed by University of Wisconsin System students when the construction work performed is a part of a curriculum and where the work is course-related for the student involved. Prior approval of the building commission must be obtained for all construction projects to be performed by University of Wisconsin System students, except projects specified in s. 13.48 (10) (c). 16.855(21)(21) This section does not apply to contracts by the department of natural resources for construction work related to hazardous substance spill response under s. 292.11 or environmental repair under s. 292.31. 16.855(22)(22) The provisions of this section, except sub. (10m), do not apply to construction work for any project involving a cost of not more than $300,000 if the project is constructed in accordance with policies and procedures prescribed by the building commission under s. 13.48 (29). Beginning in fiscal year 2023-24, this amount is $600,000. If the estimated construction cost of any project, other than a project exempted under sub. (12m), is at least $50,000, and the building commission elects to utilize the procedures prescribed under s. 13.48 (29) to construct the project, the department shall provide adequate public notice of the project and the procedures to be utilized to construct the project on a publicly accessible computer site. Beginning in fiscal year 2023-24, this amount is $100,000. 16.855 HistoryHistory: 1971 c. 125; 1973 c. 47; 1975 c. 39, 199, 390; 1977 c. 418; 1979 c. 34; 1981 c. 20; 1983 a. 27 ss. 104g to 105, 2202 (1); 1983 a. 390 s. 6; 1985 a. 29; 1985 a. 332 s. 251 (1); 1987 a. 27, 292; 1989 a. 31; 1991 a. 39, 316; 1995 a. 27 ss. 400p, 9126 (19); 1995 a. 227; 1997 a. 27, 306; 1999 a. 150 s. 672; 1999 a. 197; 2001 a. 103; 2003 a. 33, 157; 2005 a. 141, 391; 2007 a. 20 s. 9121 (6) (a); 2009 a. 299; 2011 a. 32; 2011 a. 260 s. 80; 2013 a. 20, 192; 2015 a. 55; 2017 a. 3, 237, 365; 2021 a. 238; 2023 a. 19. 16.855 Cross-referenceCross-reference: See also chs. Adm 21 and 24, Wis. adm. code. 16.85816.858 Energy conservation audits and construction projects. 16.858(1)(1) The department may contract with a qualified contractor for an energy conservation audit to be performed at any state-owned building, structure or facility. Under the contract, the contractor shall prepare a report containing a description of the physical modifications to be performed to the building, structure or facility that are required to effect specific future energy savings within a specified period and a determination of the minimum savings in energy usage that will be realized by the state from making these modifications within that period. After review of the audit report and subject to approval under s. 13.48 (10), where required, the department may contract with the contractor for construction work to be performed at the building, structure or facility for the purpose of realizing potential savings of future energy costs identified in the audit if, in the judgment of the department, the anticipated savings to the state after completion of the work will enable recovery of the costs of the work within a reasonable period of time. 16.858(2)(a)(a) A contract under sub. (1) may provide for the construction work to be financed by the state or by the contractor. The contract shall provide for the state to pay a stated amount, which shall include any financing costs incurred by the contractor. The stated amount may not exceed the minimum savings determined under the audit to be realized by the state within the period specified in the audit. The state shall make payments under the contract as the savings identified in the audit are realized by the state, in the amounts actually realized, but not to exceed the lesser of the stated amount or the actual amount of the savings realized by the state within the period specified in the audit. If the department provides financing for construction work, the department may finance any portion of the cost of the work under a master lease entered into as provided under s. 16.76 (4). If the department provides financing for the construction work and the stated amount to be paid by the state under the contract is greater than the amount of the savings realized by the state within the period specified in the audit under sub. (1), the contract shall require the contractor to remit the difference to the department. 16.858(2)(b)(b) The department shall charge the cost of payments made by the state to the contractor to the applicable appropriation for fuel and utility costs at the building, structure or facility where the work is performed in the amounts equivalent to the savings that accrue to the state under that appropriation from expenditures not made as a result of the construction work, as determined by the department in accordance with the contract. The department may also charge its costs for negotiation, administration and financing of the contract to the same appropriation. 16.858(3)(3) Any contract under sub. (1) shall include a provision stating in substance that payments under the contract are contingent upon available appropriations. 16.858(4)(4) No later than January 1 of each year, the secretary shall report to the cochairpersons of the joint committee on finance identifying any construction work for which the department has contracted under this section for which final payment has not been made as of the date of the preceding report, together with the actual energy cost savings realized by the state as a result of the contract to date, or the estimated energy cost savings to be realized by the state if the total savings to be realized in the audit under sub. (1) have not yet been realized, the date on which the state made its final payment under the contract or, if the final payment has not been made, the latest date on which the state is obligated to make its final payment under the contract, and any amount that remains payable to the state under the contract. 16.858 HistoryHistory: 1997 a. 27; 1999 a. 9. 16.86516.865 Department of administration; statewide risk management coordination. The department shall: 16.865(1)(1) Be responsible for statewide risk management coordination in order to: 16.865(1)(a)(a) Protect the state from losses which are catastrophic in nature and minimize total cost to the state of all activities related to the control of accidental loss. 16.865(1)(b)(b) Place emphasis on the reduction of loss through professional attention to scientific loss control techniques and by motivational incentives, prompt claims payments and other loss prevention measures. 16.865(2)(2) Identify and evaluate exposure to loss to the state, its employees or injury to the public by reason of fire or other accidents and fortuitous events at state-owned properties or facilities. 16.865(3)(3) Recommend changes in procedures, program conditions or capital improvement for all agencies which would satisfactorily eliminate or reduce the existing exposure. 16.865(4)(4) Manage the state employees’ worker’s compensation program and the statewide self-funded programs to protect the state from losses of and damage to state property and liability and, if retained by the department of workforce development under s. 102.65 (3), process, investigate, and pay claims under ss. 102.44 (1), 102.49, 102.59, and 102.66 as provided in s. 102.65 (3). 16.865(5)(5) Arrange appropriate insurance contracts for the transfer of risk of loss on the part of the state or its employees, to the extent such loss cannot reasonably be assumed by the individual agencies or the self-funded programs. The placement of insurance may be by private negotiation rather than competitive bid, if such insurance has a restricted number of interested carriers. The department shall approve all insurance purchases. 16.865(6)(6) Train, upgrade and guide appropriate personnel in the agencies in implementation of sound risk management practices. 16.865(7)(7) Have the authority to contract for investigative and adjustment services as provided in s. 20.865 (1) (fm) which can be performed more economically or efficiently by such contract. 16.865(8)(8) Annually in each fiscal year, allocate as a charge to each agency a proportionate share of the estimated costs attributable to programs administered by the agency to be paid from the appropriation under s. 20.505 (2) (k). The department may charge premiums to agencies to finance costs under this subsection and pay the costs from the appropriation on an actual basis. The department shall deposit all collections under this subsection in the appropriation account under s. 20.505 (2) (k). Costs assessed under this subsection may include judgments, investigative and adjustment fees, data processing and staff support costs, program administration costs, litigation costs, and the cost of insurance contracts under sub. (5). In this subsection, “agency” means an office, department, independent 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, that is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority created in subch. II of ch. 114 or in ch. 231, 232, 233, 234, 237, 238, or 279. 16.865(9)(9) Notwithstanding s. 20.001 (3) (c), if the department makes any payment from the appropriation under s. 20.505 (2) (a), lapse to the general fund from the appropriation account under s. 20.505 (2) (k) an amount equal to the payment. The department shall effect the lapse required under this subsection in accordance with a schedule determined by the department, but the total amount of each lapse shall be effected no later than 6 years after the date of the payment to which it relates. 16.86716.867 Selection of architects and engineers. 16.867(1)(1) The secretary shall establish a committee under s. 15.04 (1) (c) for each construction project under the department’s supervision, except an emergency project approved under s. 16.855 (16) (b) 2., for the purpose of selecting an architect or engineer for the project. 16.867(2)(2) If the estimated cost of a construction project under the department’s supervision is $7,400,000 or more, the selection committee appointed under sub. (1) shall use a request-for-proposal process established by the department to select an architect or engineer for the project based on qualifications. 16.867 HistoryHistory: 2017 a. 237. 16.8716.87 Approval of contracts by secretary and governor; audit. 16.87(1)(a)(a) “Construction work” includes all labor and materials used in the framing or assembling of component parts in the erection, installation, enlargement, alteration, repair, moving, conversion, razing, demolition or removal of any appliance, device, equipment, building, structure or facility. 16.87(1)(am)(am) “Disabled veteran-owned business” means a business certified by the department of administration under s. 16.283 (3). 16.87(1)(b)(b) “Environmental consultant services” includes services provided by environmental scientists, engineers and other experts. 16.87(2)(a)(a) A contract for engineering services or architectural services or a contract involving an expenditure of $10,000 or more for construction work, or $30,000 or more for limited trades work, to be done for or furnished to the state or a department, board, commission, or officer of the state is exempt from the requirements of ss. 16.705 and 16.75. 16.87(2)(b)(b) The department shall attempt to ensure that 5 percent of the total amount expended under this section in each fiscal year is paid to minority businesses, as defined in s. 16.75 (3m) (a) 4. 16.87(2)(c)(c) The department shall attempt to ensure that at least 1 percent of the total amount expended under this section in each fiscal year is paid to disabled veteran-owned businesses. 16.87(3)(3) Except as provided in sub. (4), a contract under sub. (2) is not valid or effectual for any purpose until it is endorsed in writing and approved by the secretary or the secretary’s designee and, if the contract involves an expenditure over $600,000, approved by the governor. Except as provided in sub. (4), no payment or compensation for work done under any contract involving $2,500 or more, except a highway contract, may be made unless the written claim is audited and approved by the secretary or the secretary’s designee. Any change order to a contract requiring approval under this subsection requires the prior approval by the secretary or the secretary’s designee and, if the change order involves an expenditure over $600,000, the approval of the governor. 16.87(4)(4) This section does not apply to contracts by the department of natural resources for environmental consultant services or engineering services for hazardous substance spill response under s. 292.11 or environmental repair under s. 292.31, or for environmental consultant services to assist in the preparation of an environmental impact statement or to provide preapplication services under s. 23.40. 16.87516.875 Setoffs. All amounts owed by this state under this subchapter are subject to being set off under s. 73.12. 16.875 HistoryHistory: 1985 a. 29. 16.8816.88 Charges against projects. The cost of services furnished pursuant to s. 16.85 (2) to (4), (6) and (7) shall be charged to and paid out of available funds for the respective projects, whenever in the judgment of the secretary the charges are warranted and the cost of the services can be ascertained with reasonable accuracy. 16.8916.89 Construction and services controlled by this chapter. No department, independent agency, constitutional office or agent of the state shall employ engineering, architectural or allied services or expend money for construction purposes on behalf of the state, except as provided in this chapter and except that the Board of Regents of the University of Wisconsin System may engage such services for any project specified in s. 13.48 (10) (c). 16.89116.891 Reports on cost of occupancy of state facilities. 16.891(1)(b)(b) “Total cost of occupancy” means the cost to operate and maintain the physical plant of a building, structure, or facility, including administrative costs of an agency attributable to operation and maintenance of a building, structure, or facility, together with any debt service costs associated with the building, structure, or facility, computed in the manner prescribed by the department. 16.891(2)(2) Except as provided in sub. (4), each agency shall report to the department no later than October 1 of each year concerning the total cost of occupancy of each state-owned building, structure, and facility, excluding public highways and bridges, under the jurisdiction of the agency for the preceding fiscal year. The report shall be made in a format prescribed by the department. Beginning in 2009, if a building, structure, or facility is a part of an institution, the agency having jurisdiction of the institution shall also include in its report the total cost of occupancy of all of the buildings, structures, and facilities within the institution. 16.891(3)(3) No later than December 1 of each year, the department shall compile the information received under sub. (2) and transmit a consolidated report to the building commission on the total cost of occupancy of all buildings, structures, and facilities included in the reports filed under sub. (2), itemized for each building, structure, and facility. The report shall include, for each building, structure, or facility, the recommendations of the department concerning the desired total cost of occupancy for that building, structure, or facility. 16.891(4)(4) The department may exempt an agency from compliance with the reporting requirement under sub. (2) with respect to any building, structure, or facility that the department determines to have a minimal total cost of occupancy. 16.891 HistoryHistory: 2005 a. 25. 16.89516.895 State-owned or operated heating, cooling or power plants. 16.895(2)(a)(a) Prepare all specifications, bid and administer contracts for the purchase of fuels for all state-owned or operated heating, cooling or power plants.
