Chapter 84

84.062(6)(d) (d) The technical review committee cannot consider a proposal responsive unless the proposal includes a conceptual design, critical path method, bar schedule of the work to be performed or similar schematic, design plans and specifications, technical reports, and all other information required by the request for proposals. The technical review committee cannot consider any price or fee included in the technical proposal.

84.062(6)(e) (e) The office shall notify the design-builder for each proposal that is determined to be responsive under par. (b) that the design-builder may submit a cost proposal under sub. (7). The office shall reject all proposals that are determined to be nonresponsive under par. (b).

84.062(7) (7) Cost proposals.

84.062(7)(a) (a) Design-builders notified under sub. (6) (e) may submit a cost proposal, and the proposal shall include a fixed cost of design, engineering, and construction services prepared by a design professional that contains all design, engineering, construction, and quality assurance and quality control costs of the project.

84.062(7)(b) (b) The technical review committee may open cost proposals only after the technical proposals have been reviewed as provided in sub. (6). At the time and place specified in the request for proposals, the technical review committee shall open cost proposals, read the proposals aloud, and, for a project that will be awarded as a best value design-build contract, make public the committee’s scoring of the technical proposals.

84.062(7)(c) (c) Following a review of cost proposals, the department may issue a notice of intent to award a contract, subject to all of the following:

84.062(7)(c)1. 1. For a low bid design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and submitted the lowest responsive cost proposal.

84.062(7)(c)2. 2. For a fixed price variable scope design-build contract, the contract shall be awarded to the qualified responsible bidder that submitted a responsive technical proposal and that submitted a responsive cost proposal that provides the maximum amount of services for the maximum fixed price set by the office or for an amount that is less than the maximum fixed price.

84.062(7)(c)3. 3. For a best value design-build contract, the contract shall be awarded to the qualified responsible bidder with the highest adjusted score, which shall be calculated by adding the bidder’s technical proposal score to the bidder’s cost proposal score. The technical review committee shall award the lowest qualified responsible bidder the maximum number of points that may be awarded to a cost proposal under the request for proposals, but not less than 45 percent and not more than 75 percent of the maximum number of combined points that may be awarded to a technical proposal and cost proposal. For each remaining qualified responsible bidder, the technical review committee shall calculate the score for the cost proposal by reducing the maximum number of points that may be awarded to the cost proposal by at least 1 percent for each percentage point by which the cost proposal exceeds the lowest cost proposal.

84.062(7)(d) (d) Following a review of cost proposals, the office may reject all proposals. If the office rejects all proposals or does not execute a contract after issuing an intent to award a contract under par. (c), the office may reissue the request for proposals and allow only the qualified responsible bidders originally notified under sub. (6) (e) to submit new proposals. The office may pay a reasonable stipulated fee to each design-builder that provides a responsive but unsuccessful proposal in response to the reissued request for proposals. If the reissued request for proposals specifies a maximum fixed price, the office cannot award a stipend to a design-builder whose proposal exceeds that price.

84.062(7)(e) (e) Not fewer than 5 working days prior to executing a design-build contract, the department shall provide notice to each unsuccessful qualified responsible bidder that a notice of intent to award a contract has been issued.

84.062(7)(f) (f) The department and the technical review committee shall maintain the confidentiality of information provided by design-builders as required by s. 84.01 (32).

84.062(8) (8) Contract award.

84.062(8)(a) (a) In this subsection:

84.062(8)(a)1. 1. “Construction services” means work necessary to construct a project, including trucking services and materials purchased regardless of whether the materials are installed by the design-builder.

84.062(8)(a)2. 2. “Specialty services” means work related to sanitary sewer systems, water main systems, staking, electrical, landscaping and erosion control, traffic control, signing, pavement marking, fencing, and other work identified by the office.

84.062(8)(b) (b) No later than 10 days following the issuance of a notice of intent to award a design-build contract under sub. (7) (c), the office shall verify that the design-builder will perform not less than 30 percent of the construction services under the contract with labor provided by employees of the design-builder or member and equipment owned or rented by the design-builder or member.

84.062(8)(c) (c) The design-builder shall submit to the office in the form prescribed by the office documentation of the construction services the design-builder or member will perform and the dollar value of the services.

84.062(8)(d) (d) The office shall calculate the percentage of total construction services identified in the contract to be performed by the design-builder or member by subtracting the value of specialty services to be performed from the total contract amount and dividing the dollar value of construction services to be performed by the design-builder or member by the difference. If the value of construction services to be performed by the design-builder or member is less than 30 percent of the value of all construction services required under the contract, the office shall cancel the contract award.

84.062(9) (9) Project delivery. An individual identified in a response to a request for qualifications or in a technical proposal may be replaced by a design-builder if the office determines that the new individual meets the qualifications described in the response to the request for qualifications or in the technical proposal and that the individual’s qualifications are at least equal to the qualifications of the individual being replaced.

84.062(10) (10) Liability.

84.062(10)(a) (a) Nothing in this section shall be construed as relieving a design-builder of 3rd-party liability or liability for loss or damage to property of the state or a county or municipality.

84.062(10)(b) (b) All design services, including architectural and engineering services, provided under a design-build contract are services and not products.

84.062(11) (11) Stipulated fee.

84.062(11)(a) (a) The department shall award a stipulated fee of not less than three-tenths of 1 percent of the department’s estimated cost of design and construction as follows:

84.062(11)(a)1. 1. To each qualified responsible bidder that provides a responsive but unsuccessful proposal when the office issues a notice of intent to award a contract. If the request for proposals specifies a maximum fixed price, the office cannot award a fee to a proposal that exceeds the maximum fixed price.

84.062(11)(a)2. 2. To all qualified responsible bidders that provide a responsive proposal if the office does not issue a notice of intent to award a contract.

84.062(11)(a)3. 3. To all qualified responsible bidders if the office cancels the solicitation before the technical review committee reviews technical proposals.

84.062(11)(b) (b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department issues a notice of intent to award a contract, determines that it will not issue a notice of intent to award a contract, or cancels the solicitation.

84.062(11)(c) (c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any proposed or awarded design-build project without making any additional compensation to the design-builder. If an unsuccessful design-builder waives the fee, the department cannot use work product in the design-builder’s unsuccessful proposal.

84.062(12) (12) Rules. The department may promulgate rules necessary to implement this section.

84.062(13) (13) Appeals.

84.062(13)(a) (a) Any person aggrieved and directly affected by a decision of the office to issue a request for qualifications or a request for proposals under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a request for qualifications or a request for proposals issued by the office under this section:

84.062(13)(a)1. 1. The request does not include qualifications, requirements, or other items required under this section.

84.062(13)(a)2. 2. The request does not comply with procedural requirements under this section.

84.062(13)(a)3. 3. The request contains material errors or omissions.

84.062(13)(a)4. 4. The request contains material discrepancies, deficiencies, or ambiguities that prevent a person from submitting a responsive proposal.

84.062(13)(a)5. 5. The request indicates a bias against or preference for a specific design-builder.

84.062(13)(a)6. 6. The request exceeds the department’s authority.

84.062(13)(b) (b) Any person aggrieved and directly affected by a decision of the office to issue a notice of intent to award a contract under this section shall be entitled to judicial review of the decision as provided in ch. 227, subject to the procedural requirements of s. 227.53 (1). A person shall be considered a person aggrieved and directly affected by a decision of the office if any of the following apply to a notice of intent to award a contract under this section:

84.062(13)(b)1. 1. The design-builder that received the notice of intent to award a contract was improperly certified as a qualified responsible bidder.

84.062(13)(b)2. 2. A mathematical error was made in scoring any of the proposals that resulted in an improper intent to award a contract.

84.062(13)(b)3. 3. There is evidence of collusion or fraud involving either the design-builder that received the notice of intent to award a contract or a member of the technical review committee.

84.062(13)(b)4. 4. There is evidence of bias of a member of the technical review committee.

84.062(13)(b)5. 5. There is evidence that a member of the technical review committee has a conflict of interest because the committee member, a member of his or her immediate family, as defined in s. 19.42 (7), or any organization or business with which the member is associated, as defined in s. 19.42 (2), may benefit from the intent to award a contract.

84.062(13)(b)6. 6. The technical proposal or cost proposal submitted by the design-builder that received the notice of intent to award a contract is not responsive to the request for proposals, contains conditions or qualifications not provided for in the request for proposals, or does not assign costs to all services identified in the technical proposal or is otherwise materially unbalanced.

84.062(13)(c) (c) If the office prevails upon judicial review, following any protest and appellate court proceedings, the office shall be entitled to recover all costs and charges included in the final order or judgment, excluding attorney fees. Upon payment of costs and charges by the protester, the bond shall be returned. If the protesting party prevails, the protesting party shall be entitled to recover from the office all costs and charges included in the final order or judgment, excluding attorney fees. The entire amount of the bond shall be forfeited if the hearing officer determines that a protest was filed for a frivolous or improper purpose, including the purpose of harassing, causing unnecessary delay, or causing needless cost for the office or parties.

84.062(14) (14) Deliverables.

84.062(14)(c) (c) No later than December 31, 2026, the office shall submit a report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters summarizing observations of the process utilized for alternative project delivery methods and describing the effectiveness of the alternative project delivery methods contracting procedures. The report shall include discussion on scope of work, history of projects selected, evaluation criteria, selection process, contract administration, work progression, time and cost comparisons between the traditional contracting method and alternative delivery methods, claims, and changes.

84.062(14)(d) (d) No later than 6 months after receipt of the report required under par. (c), the joint committee on finance shall determine whether the alternative project delivery pilot program was successful in providing the department with additional tools that allow innovation, reduced project completion time, cost certainty, or reduced cost or other advantages or benefits and shall make a recommendation to the legislature as to whether the pilot program should be made permanent.

84.062 History History: 2019 a. 9; 2021 a. 58; 2021 a. 240 s. 30; 2023 a. 46.

84.063 84.063 Utility facilities relocation.

84.063(1) (1) Definitions. In this section:

84.063(1)(c) (c) “Contractor” means a person who is seeking or has entered into a highway improvement contract with the department under s. 84.06.

84.063(1)(d) (d) “Highway improvement” means a state trunk highway improvement project.

84.063(1)(e) (e) “Owner” means an owner of a utility facility.

84.063(1)(f) (f) “Utility facility” means any pipe, pipeline, duct, wire line, conduit, pole, tower, equipment or other structure, whether aboveground or underground, used for any of the following:

84.063(1)(f)1. 1. The transmission or distribution of electrical power or light.

84.063(1)(f)2. 2. The transmission, distribution or delivery of heat, water, gas, sewer, telegraph or telecommunication services.

84.063(1)(g) (g) “Utility relocation delay” means a change in operations of a contractor or the rescheduling of work by a contractor that is caused by the uncompleted relocation or adjustment of a utility facility located in the right-of-way, regardless of whether the relocation or adjustment of the utility facility is identified in a plan under sub. (3).

84.063(2) (2) Notification.

84.063(2)(a) (a) If a utility facility is within the right-of-way of a proposed highway improvement, the department shall identify the owner and notify the owner in writing of the proposed improvement.

84.063(2)(b) (b) Within a specified period after the date the notice is received, the utility facility owner shall provide the department with a description and the general location of each utility facility in the proposed highway improvement right-of-way.

84.063(3) (3) Plans.

84.063(3)(a) (a) If a utility facility owner provides the information required under sub. (2), the department shall send the utility facility owner at least one set of available project plans for the proposed highway improvement, including the location of the owner’s existing utility facilities.

84.063(3)(b) (b) Within a specified period after receiving the project plans, the owner shall provide the department with a work plan. The period of time within which the owner is required to provide the department with a work plan shall reflect whether the utility facility owner is required to coordinate its work plan with another utility facility owner. The work plan provided by the owner shall include all of the following:

84.063(3)(b)1. 1. A copy of the project plans that verifies the location of all of the owner’s existing utility facilities specified on the plans by the department and that identifies the owners’ proposed location of relocated or additional utility facilities within the right-of-way of the proposed improvement.

84.063(3)(b)2. 2. A plan and a schedule of working days necessary to obtain any approval required by a governmental agency and to accomplish any proposed relocation or adjustment required by the proposed improvement.

84.063(3)(c) (c) The department shall review and approve a work plan submitted under par. (b) for compliance with permit requirements and to ensure that the plan is reasonable. Approval of a work plan under this paragraph does not waive any requirement for approval of the work plan by any other governmental agency. The utility facility owner shall notify the department when all required approvals have been obtained. After receiving notification that all approvals have been obtained, the department shall notify the owner of the date on which the owner may proceed with its utility facility relocation work.

84.063(3)(d) (d) The department shall notify the utility facility owner of any change in the highway improvement that requires additional relocation or adjustment of utility facilities. The department and the owner shall agree on a reasonable time to accomplish the additional work.

84.063(4) (4) Responsibilities.

84.063(4)(a) (a) If additional utility facility relocation or adjustment work is required under sub. (3) (d), the department shall reimburse the owner for the additional work.

84.063(4)(b) (b) The project contractor shall be responsible for any damages negligently caused to a utility facility.

84.063(4)(c) (c) If the utility facility owner fails to comply with sub. (3), the department or its contractor shall not be liable to the owner for damages to a utility facility resulting from the highway improvement if the department or its contractor complies with s. 182.0175 (2), and the owner shall be liable to the department or its contractor for damages resulting from the failure to comply.

84.063(4m) (4m) Utility relocation delay damages claims.

84.063(4m)(a) (a) A contractor that incurs costs as a result of a utility relocation delay may file a utility relocation delay damages claim with the department.

84.063(4m)(b) (b) The department shall notify the owner of the relevant utility facility upon receipt of a claim under par. (a). The owner may respond to the claim by providing additional information related to the claim. The owner may not request a contested case hearing under par. (d) 2. unless the owner provides additional information under this paragraph.

84.063(4m)(c) (c) The department shall consider all information provided by the contractor under par. (a) and, if applicable, the owner under par. (b). If the department determines that a utility relocation delay occurred, the department shall compensate the contractor for costs incurred as a result of the utility relocation delay. The department may not impose liquidated damages for work required by the contract that is not completed within the contract time or within extra time allowed by the department as a result of the utility relocation delay. The amount of compensation under this paragraph shall be calculated and paid in accordance with the department’s standard specifications for compensable delays.

84.063(4m)(d) (d)

84.063(4m)(d)1. 1. If a utility relocation delay identified under par. (c) was caused by an owner’s failure to complete a relocation in accordance with a work plan approved by the department under sub. (3), the owner shall be liable to the department for compensation paid to a contractor under par. (c). An owner shall not be liable under this subdivision when the failure to complete a relocation is caused by circumstances outside of the owner’s reasonable control, as determined by the department upon consideration of any information provided by the owner to the department under sub. (3) or this subsection, including a delay caused by another owner identified in the work plan or reliance on a 3rd party to identify and verify the location of a utility facility requiring relocation. The department may not assess against the owner any fees, costs, or expenses in excess of the compensation paid under par. (c). Subject to subd. 2., an owner shall make payment to the department no later than 90 days after receiving notice of the amount owed.

84.063(4m)(d)2. 2. Within 90 days after receiving an assessment notice under subd. 1., an owner may request a contested case hearing under s. 227.42 to review the decision of the department under subd. 1., and a hearing shall be scheduled if the owner previously responded to the claim as provided in par. (b). Any amount that the owner owes to the department under subd. 1. shall be stayed pending the contested case hearing.

84.063(4m)(d)3. 3. If an owner fails to make payment of amounts owed to the department under this paragraph, the department may seek remedy by filing a civil suit against the owner.

84.063(4m)(e) (e) The department may not consider amounts paid or owed under par. (d) when making a determination on an owner’s permit application, amounts paid to the owner under sub. (4) (a) or s. 84.09, or any other matter involving the owner.

84.063(5) (5) Rules. The department shall promulgate rules to implement and administer this section.

84.063 History History: 1991 a. 39; 1999 a. 85; 2023 a. 46.

84.063 Cross-reference Cross-reference: See also ch. Trans 220, Wis. adm. code.

84.065 84.065 Railroad and utility alteration and relocation loan program.

84.065(1) (1) Purpose. The purpose of this section is to promote the state’s interest in preserving and improving state trunk and connecting highways by means of a program to provide loans for railroad and public utility alterations and relocations associated with highway improvement projects.

84.065(2) (2) Definitions. In this section: