Wis. Stat. § 84.062

Alternative project delivery

Redline — January 1, 2015 → current.View current text →

Current — January 1, 2021

As of January 1, 2015

(1) Definitions. In this section:

(a) “Hourly basic rate of pay" has the meaning given in s. 16.856 (1) (b) .

(b) “Prevailing hours of labor" has the meaning given in s. 16.856 (1) (e) .

(d) “Truck driver" has the meaning given in s. 16.856 (1) (j) .

(2) Prevailing wage rates and hours of labor. No person performing the work described in sub. (2m) in the employ of a contractor, subcontractor, agent or other person performing any work on a project under a contract based on bids as provided in s. 84.06 (2) to which the state is a party for the construction or improvement of any highway may be permitted to work a greater number of hours per day or per week than the prevailing hours of labor; nor may he or she be paid a lesser rate of wages than the prevailing wage rate in the area in which the work is to be done; except that any such person may be permitted or required to work more than such prevailing hours of labor per day and per week if he or she is paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times his or her hourly basic rate of pay.

(2g) Nonapplicability. This section does not apply to a single-trade project of public works, as defined in s. 16.856 (1) (g) , for which the estimated project cost of completion is less than $48,000 or a multiple-trade project of public works, as defined in s. 16.856 (1) (d) , for which the estimated project cost of completion is less than $100,000.

(2m) Covered employees.

(a) Subject to par. (b) , all of the following employees shall be paid the prevailing wage rate and may not be permitted to work a greater number of hours per day or per week than the prevailing hours of labor, unless they are paid for all hours worked in excess of the prevailing hours of labor at a rate of at least 1.5 times their hourly basic rate of pay:

1. All laborers, workers, mechanics and truck drivers employed on the site of a project that is subject to this section.

2. All laborers, workers, mechanics and truck drivers employed in the manufacturing or furnishing of materials, articles, supplies or equipment on the site of a project that is subject to this section or from a facility dedicated exclusively, or nearly so, to a project that is subject to this section by a contractor, subcontractor, agent or other person performing any work on the site of the project.

(b) A laborer, worker, mechanic, or truck driver who is employed to process, manufacture, pick up, or deliver materials or products from a commercial establishment that has a fixed place of business from which the establishment supplies processed or manufactured materials or products or from a facility that is not dedicated exclusively, or nearly so, to a project that is subject to this section, including any of the following, is not entitled to receive the prevailing wage rate or to receive at least 1.5 times his or her hourly basic rate of pay for all hours worked in excess of the prevailing hours of labor:

1. A laborer, worker, mechanic or truck driver who is employed to go to the source of mineral aggregate such as sand, gravel or stone and deliver that mineral aggregate to the site of a project that is subject to this section.

2. A laborer, worker, mechanic or truck driver who is employed to go to the site of a project that is subject to this section, pick up excavated material or spoil from the site of the project, and transport that excavated material or spoil away from the site of the project and return to the site of the project.

(c) A truck driver who is an owner-operator of a truck shall be paid separately for his or her work and for the use of his or her truck.

(5) Disclosure. If a person who is not an employee of the department or the contracting state agency contacts an employee performing the work described in sub. (2m) for the purpose of investigating compliance with this section, the person shall provide a written statement to the employee stating that the person is not affiliated with the department or the contracting state agency and disclosing the principal source of funding for the investigation.

(6) Contents of contracts; notification. A reference to the prevailing wage rates and the prevailing hours of labor shall be published in the notice issued for the purpose of securing bids for a project. If any contract or subcontract for a project that is subject to this section is entered into, the prevailing wage rates and the prevailing hours of labor shall be physically incorporated into and made a part of the contract or subcontract, except that for a minor subcontract, the department of administration shall prescribe under s. 16.856 (2) the method of notifying the minor subcontractor of the prevailing wage rates and prevailing hours of labor applicable to the minor subcontract. The prevailing wage rates and prevailing hours of labor applicable to a contract or subcontract may not be changed during the time that the contract or subcontract is in force. For the information of the employees working on the project, the prevailing wage rates, the prevailing hours of labor, and the provisions of subs. (2) and (7) shall be kept posted by the department in at least one conspicuous and easily accessible place on the site of the project.

(7) Penalties.

(a) Except as provided in pars. (b) and (d) , any contractor, subcontractor, or contractor's or subcontractor's agent who violates this section may be fined not more than $200 or imprisoned for not more than 6 months or both. Each day that a violation continues is a separate offense.

(b) Whoever induces any person who seeks to be or is employed on any project that is subject to this section to give up, waive or return any part of the wages to which the person is entitled under the contract governing the project, or who reduces the hourly basic rate of pay normally paid to a person for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, by threat not to employ, by threat of dismissal from employment or by any other means is guilty of an offense under s. 946.15 (1) .

(c) Any person employed on a project that is subject to this section who knowingly permits a contractor, subcontractor or contractor's or subcontractor's agent to pay him or her less than the prevailing wage rate set forth in the contract governing the project, who gives up, waives or returns any part of the compensation to which he or she is entitled under the contract, or who gives up, waives or returns any part of the compensation to which he or she is normally entitled for work on a project that is not subject to this section during a week in which the person works both on a project that is subject to this section and on a project that is not subject to this section, is guilty of an offense under s. 946.15 (2) .

(d) Whoever induces any person who seeks to be or is employed on any project that is subject to this section to permit any part of the wages to which the person is entitled under the contract governing the project to be deducted from the person's pay is guilty of an offense under s. 946.15 (3) , unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC 3142 .

(e) Any person employed on a project that is subject to this section who knowingly permits any part of the wages to which he or she is entitled under the contract governing the project to be deducted from his or her pay is guilty of an offense under s. 946.15 (4) , unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC 3142 .

(8) Enforcement and prosecution. The department shall require adherence to subs. (2) , (2m) , and (6) . The department may demand and examine, and every contractor, subcontractor, and contractor's or subcontractor's agent shall keep and furnish upon request by the department, copies of payrolls and other records and information relating to compliance with this section. If requested by any person performing the work described in sub. (2m) , the department shall conduct an investigation to ensure compliance with this section. Upon request of the department or upon complaint of alleged violation, the district attorney of the county in which the work is located shall investigate as necessary and prosecute violations in a court of competent jurisdiction. Section 111.322 (2m) applies to discharge and other discriminatory acts arising in connection with any proceeding under this section.

(1) Definitions. In this section:

(a) “Alternative technical concepts" means a proposed alternative to the technical requirements provided by the office in the request for proposals for a project.

(b) “Best value design-build contract” means a design-build contract award made following a calculation of value as provided in a request for proposals.

(c) “Design-build contract” means a contract for a project under which the design, engineering, construction, and related services are provided by a single design-builder.

(d) “Design-builder" means a private legal entity, consortium, or joint venture that proposes to or executes a contract with the office to design, engineer, and construct a project under this section.

(dm) “Design professional” means a person registered under s. 443.03 or 443.04 or a firm, partnership, or corporation registered under s. 443.08 .

(e) “Design-build project" means a project for which design, engineering, construction, and related services are procured through a single contract with a single private legal entity, consortium, or joint venture capable of providing the necessary design, engineering, construction, and related services.

(h) “Fixed price variable scope design-build contract” means a design-build contract award made to the lowest qualified responsible bidder able to provide the best qualitative scope of work at a price not to exceed a fixed price set by the office.

(i) “Low bid design-build contract” means a design-build contract award made to the lowest qualified responsible bidder.

(j) “Member” means a private legal entity that is a member of a consortium or joint venture that is a design-builder.

(k) “Office” means the department.

(L) “Project” means a project involving a highway improvement, as defined in s. 84.063 (1) (a) .

(m) “Qualified responsible bidder” means a design-builder that is responding to a request for qualifications and that is certified by the technical review committee.

(n) “Responsive cost proposal” means a proposal that clearly identifies the costs of all services to be performed by the qualified responsible bidder, including all related fees, wages, and equipment and material costs.

(o) “Responsive technical proposal” means a proposal that clearly demonstrates a qualified responsible bidder's understanding of the design, engineering, and construction services to be performed and clearly describes the bidder's approach to the project.

(p) “Technical review committee” means the committee appointed under sub. (3) .

(q) “Value engineering change” means a proposal that provides for a product of equal or improved quality to the product required by the department and that will reduce the project cost, improve safety, or decrease the time to complete the project.

(2) Design-build projects.

(a) The department shall administer a pilot program under which not more than 6 contracts are awarded for design-build projects.

(b) The department cannot expend more than $250,000,000 for 6 design-build contracts designated as follows:

1. One low bid design-build contract for a project with an estimated value of not more than $25,000,000.

2. One best value design-build contract for a project with an estimated value of not more than $75,000,000.

3. One fixed price variable scope design-build contract with an estimated value of not more than $75,000,000.

4. Three contracts with a total estimated value of not more than $125,000,000. The department may enter into a low bid design-build contract, best value design-build contract, or fixed price variable scope design-build contract under this subdivision.

(d) For each project designated under par. (b) , the office shall solicit requests for qualifications, requests for proposals, and cost proposals as provided in this section and, subject to sub. (7) (c) and (d) , let each project by contract to a qualified responsible bidder.

(e) No more than 6 months following the completion of a design-build project designated under par. (b) , the office shall prepare a report, with input from the design-builder and the technical review committee, detailing the project, the decision to designate the project as a design-build project, the type of design-build contract let, and recommendations for statutory changes, if any. The office shall provide this report to the joint committee on finance and the senate and assembly standing committees having jurisdiction over transportation matters. The senate and assembly standing committees having jurisdiction over transportation matters shall schedule a hearing on the report not more than 30 days following distribution of the report by the chief clerks of the senate and the assembly. This paragraph does not apply to projects completed after December 31, 2025.

(3) Technical review committee.

(a) The secretary shall appoint 5 individuals to a technical review committee to evaluate proposals submitted under this section. The committee shall consist of the following:

1. An employee of the department representing a regional office of the department .

2. Two employees of the department representing the division of the department responsible for transportation project development .

3. One person representing a state association of architectural, engineering, or design companies.

4. One person representing a state association of transportation construction companies.

(b) The secretary cannot appoint to the technical review committee any person associated, as defined in s. 19.42 (2) , with a design-builder. No person appointed to the technical review committee may review proposals under this section when the proposed project could benefit the appointee or the appointee's immediate family, as defined in s. 19.42 (7) .

(d) Except as otherwise provided in this section, all records of the technical review committee are open to public inspection and copying under s. 19.35 (1) .

(4) Bids. The office shall solicit design-build proposals in 2 phases. In the first phase, the office shall solicit requests for qualifications under sub. (5) and requests for proposals under sub. (6) . The technical review committee shall certify responsible bidders as provided in sub. (5) (c) and shall score technical proposals as provided in sub. (6) (b) . In the 2nd phase, the office shall solicit cost proposals and the technical review committee shall evaluate cost proposals as provided in sub. (7) .

(5) Request for qualifications.

(a) The office shall prepare a request for qualifications that includes all of the following:

1. Minimum required qualifications for certification as a qualified bidder, which shall include all of the following:

a. The design and construction experience of the design-builder or member, personnel, and contractors who will manage the design, engineering, and construction aspects of the project. The office cannot require a level of experience that will unreasonably restrict competition.

b. A requirement that the design-builder or member employ an individual who has no fewer than 5 years of experience in highway construction specific to highway improvement projects in this state.

c. A requirement that the design-builder or member be a design professional or will employ or contract with a design professional.

d. A sworn statement of the design-builder's financial ability, equipment, and experience in design-build project delivery and any other information the office determines is necessary to determine a bidder's competency.

2. Minimum required qualifications for certification as a responsible bidder, which shall include all of the following:

a. The design-builder is registered or authorized to do business in this state.

b. The design-builder submits a sworn statement that indicates that it has adequate financial resources to complete the work described in the request for qualifications, taking into account any other work the design-builder is currently under contract to complete.

c. The design-builder 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.

d. If the department has previously contracted with the design-builder or a member, the design-builder or member has a record of satisfactorily completing projects.

e. The design-builder or a member is not on a list maintained by the department identifying persons ineligible to bid due to suspension or debarment or on a list that the department of administration maintains for persons who violated statutory provisions or administrative rules relating to construction.

f. The design-builder or a member has been in business for at least 12 months.

g. The design-builder or a member has served as a contractor on no fewer than 5 projects administered by the department.

h. The design-builder can provide information to the technical review committee upon request about ownership, management, and control of the design-builder.

i. The design-builder or a member has not been debarred from any government contracts and has not been found to have committed tax avoidance or evasion in any jurisdiction in the previous 10 years.

j. The design-builder has not been disciplined under a professional license in any jurisdiction in the previous 10 years.

k. No design professional employed by the design-builder or a member or that the design-builder will contract with has been disciplined in any jurisdiction under a license that is currently in use.

3. Information about bid procedures and the proposed project, including all of the following:

a. The type of contract to be awarded.

b. The selection criteria for recommendation of design-builders for phase 2.

c. Project requirements, including a scope of work statement and a schedule.

Official source: Wisconsin State Legislature. Reproduced from public-domain Wisconsin statutes; confirm against the official source for the current text. Not legal advice.