16.705 Contractual services.

(1) The department or its agents may contract for services which can be performed more economically or efficiently by such contract. The department shall, by rule, prescribe uniform procedures for determining whether services are appropriate for contracting under this subsection.

(1b) The determinations under sub. (1) do not apply to a contract entered into by any of the following:

(a) The department under s. 16.25 (4) (b).

(b) The department of corrections for global positioning system tracking services under s. 301.48 (3) or 301.49.

(c) The department under s. 16.848 (1).

(d) The department of financial institutions under s. 224.51.

(f) The department of workforce development for the Project SEARCH program under s. 47.07.

(1r) Notwithstanding s. 16.75 (2m) and (3m), and except as provided in s. 16.75 (2) (b) and (7), the department and its agents may purchase contractual services only if those services are performed within the United States. This requirement does not apply to any of the following:

(a) Contractual services that are not available to be performed within the United States.

(b) Contractual services if the payment for any part of the contractual services is made from federal moneys.

(c) The renewal, modification, or extension of any contract in effect on March 18, 2010.

(d) Contractual services purchased by the Board of Regents of the University of Wisconsin System with moneys appropriated under s. 20.285 (1) (ge), (u), or (w).

(e) Contractual services purchased by the University of Wisconsin-Madison with moneys appropriated under s. 20.285 (1) (ge), (u), or (w).

(1s) If contractual services are purchased by the department or its agent that would require an individual performing the services to have access to federal tax information received directly from the federal Internal Revenue Service or from a source that is authorized by the federal Internal Revenue Service, a background check shall be performed on each individual performing the services. The background investigation may include requiring the individual to be fingerprinted on 2 fingerprint cards each bearing a complete set of the individual's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice shall submit any such fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the individual fingerprinted and obtaining records of his or her criminal arrests and convictions.

(2)

(a) The department shall promulgate rules for the procurement of contractual services by the department and its designated agents, including but not limited to rules prescribing approval and monitoring processes for contractual service contracts; except as provided in par. (b), a requirement for agencies to conduct a uniform cost-benefit analysis of each proposed contractual service procurement involving an estimated expenditure of more than $50,000 in accordance with standards prescribed in the rules; and, except as provided in par. (b), a requirement for agencies to review periodically, and before any renewal, the continued appropriateness of contracting under each contractual services agreement involving an estimated expenditure of more than $50,000.

(b) A cost-benefit analysis or continued appropriateness review is not required for the following services:

1. Services that federal or state law requires to be performed by contract.

2. Services that must be provided per a contract, license, or warranty, by the original equipment manufacturer or publisher.

3. Services that cannot be performed by state employees because the state lacks the required infrastructure.

4. Web-based software application services that are delivered and managed remotely.

(c) Each officer requesting approval to engage any person to perform contractual services shall submit to the department written justification for such contracting which shall include a description of the contractual services to be procured, justification of need, justification for not contracting with other agencies, a specific description of the scope of contractual services to be performed, and justification for the procurement process if a process other than competitive bidding is to be used. The department may not approve any contract for contractual services unless it is satisfied that the justification for contracting conforms to the requirements of this section and ss. 16.71 to 16.77.

(5) The department shall promulgate rules to assure that the process used for selection of persons to perform contractual services includes a review of the independence and relationship, if any, of the contractor to employees of the agency, disclosure of any former employment of the contractor or employees of the contractor with the agency and a procedure to minimize the likelihood of selection of a contractor who provides or is likely to provide services to industries, client groups or individuals who are the object of state regulation or the recipients of state funding to a degree that the contractor's independence would be compromised.

(6) If the agency for which contractual services are performed under a contractual services agreement concludes that the performance was unsatisfactory, the agency shall file with the department an evaluation of the contractor's performance within 60 days after the fulfillment of the agreement. The evaluation shall be in such form as the secretary may require.

(7) The department shall review evaluations submitted under sub. (6) and promulgate rules prescribing procedures to assure that future contracts for contractual services are not awarded to contractors whose past performance is found to be unsatisfactory, to the extent feasible.

(8) The department shall, annually on or before October 15, submit to the governor, the joint committee on finance, the joint legislative audit committee and the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3), a report concerning the number, value and nature of contractual service procurements authorized for each agency during the preceding fiscal year. The report shall also include, with respect to contractual service procurements by agencies for the preceding fiscal year:

(a) A summary of the cost-benefit analyses completed by agencies in compliance with rules promulgated by the department under sub. (2).

(b) Recommendations for elimination of unneeded contractual service procurements and for consolidation or resolicitation of existing contractual service procurements.

(9) The department shall maintain a list of persons that are or have been a party to a contract with the state under this subchapter who have violated a provision of this subchapter or a contract under this subchapter. The parties on the list are ineligible for state contracts and no state contract may be awarded to a party on the ineligible list. The department may remove any party from the ineligible list if the department determines that the party's practices comply with this subchapter and provide adequate safeguards against future violations of this subchapter or contracts under this subchapter.

History: 1977 c. 196 s. 31; Stats. 1977 s. 16.705; 1981 c. 20; 1983 a. 27; 1985 a. 29 s. 3200 (1); 1985 a. 332 s. 251 (1); 1987 a. 186; 1989 a. 125; 1999 a. 105; 2003 a. 33 ss. 201, 9160; 2005 a. 89, 142, 431; 2009 a. 28, 136; 2011 a. 10, 32, 266; 2013 a. 20 ss. 79 to 84, 2365m, 9448; 2015 a. 55; 2017 a. 59, 154; 2019 a. 9.

Procuring statutes and regulations, such as Adm Ch. 10, Wis. Adm. Code, are designed to prevent fraud, collusion, favoritism, and improvidence in the administration of public business, as well as to ensure that the public receives the best work at the most reasonable price practicable. As such, these regulations are intended for the benefit and protection of the public and not of the individual bidder. PRN Associates LLC v. DOA, 2009 WI 53, 317 Wis. 2d 656, 766 N.W.2d 559, 07-0476.

It is possible for the state to lease one of its parking facilities to an independent contractor upon a finding that an independent contractor can perform the service of operating and maintaining the parking facility more economically or more efficiently than the civil service system. 62 Atty. Gen. 183.