(1) DEFINITIONS. In this section: (ae) “Alternative project delivery” means any construction project delivery method, other than under s. 84.06 (2), that is eligible for federal funding under title 23 of the code of federal regulations. (am) “Alternative technical concept” means a suggested change to the project requirements submitted by a qualified responsible bidder or proposer that modifies the department's supplied basic configurations or design or construction criteria in the request for proposals for a project. (bm) “Construction manager-general contractor delivery” is the delivery of a project through a 2-phase contract under which a contractor provides services during the preconstruction phase and, if there is an agreed upon price and scope, the construction phase of a project. (e) “Design-build project” means a project for which design, engineering, construction, and related services are procured through a single contract with an entity, consortium, or joint venture capable of providing the necessary design, engineering, construction, and related services. (er) “Progressive design-build method” means a 2-phase contract, including a qualification-based selection process after which the department and a contractor work together to develop the final scope, schedule, and budget for a project. (L) “Project” means a state trunk highway improvement project. (Lm) “Proposer” means an entity, joint venture, or consortium that submits a proposal in a single-phase selection process under sub. (4) (c). (m) “Qualified responsible bidder” means a respondent determined by the technical review committee to be a qualified responsible bidder under sub. (3) (cm) 1. (mn) “Respondent” means an entity, joint venture, or consortium that submits a response to a request for qualifications. (p) “Technical review committee” means the committee appointed under sub. (3). (2) PROJECTS. (a) Notwithstanding s. 84.06 (2), the department may award contracts under this section for projects that will use alternative project delivery. The department may not award contracts under this section for projects using construction manager-general contractor delivery or progressive design-build methods. (c) 1. Subject to subds. 2. to 4., the department may encumber in each fiscal biennium an amount not to exceed $300,000,000 for projects using alternative project delivery. 2. In a joint project between states, the amounts that the department pays or commits to the other state, and the amounts paid or committed to this state by the other state, may not be counted under subd. 1. 3. The amount that is encumbered in a fiscal biennium under subd. 1. does not limit the amount that may be encumbered under subd. 1. in subsequent fiscal biennia. The amount that is not encumbered in a fiscal biennium under subd. 1. may not be carried forward to increase the total amount that may be encumbered under subd. 1. in subsequent fiscal biennia. 4. The department shall annually adjust the amount specified in subd. 1. to reflect the annual change in the Wisconsin Department of Transportation Construction Cost Index, Yearly Moving Average, as maintained by the department or, if at any time the department no longer maintains this index, another suitable index as determined by the department. Beginning in 2026, prior to October 1 of each year, the department shall compute the annual adjustment required under this subdivision and shall publish the new adjusted amount applicable under subd. 1., which amount shall become effective on October 1 of that year. The department may not adjust the amount specified in subd. 1. to a lower amount. (3) TECHNICAL REVIEW COMMITTEE. (a) The secretary shall appoint 5 individuals, each of whom shall have directly participated in the design or construction of highway projects in this state, 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 project development. 3. One individual who is recommended by a state association of architectural, engineering, or design companies or, if no association recommends an individual, is an employee of the department. 4. One individual who is recommended by a state association of transportation construction companies or, if no association recommends an individual, is an employee of the department. (b) The secretary may not appoint to the technical review committee any person associated, as defined in s. 19.42 (2), with a respondent or proposer and shall replace on the technical review committee any person associated, as defined in s. 19.42 (2), with a respondent or proposer. 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). (c) A person appointed to the technical review committee is an agent of the department under s. 895.46. (cm) 1. The technical review committee shall review all responses to a request for qualifications and determine which respondents are qualified responsible bidders. 2. The technical review committee shall review and evaluate, in accordance with the request for proposals, each proposal from a qualified responsible bidder or proposer provided to the department in response to a request for proposals issued under this section. The committee’s evaluation may include a confidential interview. 3. Based on its review and evaluation of proposals under subd. 2., the technical review committee shall make a recommendation for awarding a contract, but only if the department receives 2 or more proposals. 4. The technical review committee shall reject as nonresponsive any proposal that contains an alternative technical concept unless, prior to the submission of a proposal that includes an alternative technical concept, the department determines that the alternative technical concept provides a solution that is equal to or better than the solution provided by the requirements in the request for proposals and approves the use of the alternative technical concept in writing. (e) Notwithstanding ss. 19.83 (1) and 19.85 (1), any meeting of the technical review committee shall be conducted in closed session and, subject to sub. (15), records of the meeting, including records developed in reviewing statements of qualifications and in the review of proposals, shall remain confidential until the date of notification of selection of the successful qualified responsible bidder or proposer. This paragraph does not limit the ability of the department to share information with a respondent, proposer, or qualified responsible bidder about their own statement of qualifications or proposal. (4) PROCUREMENT. (a) In this subsection, “single-phase selection process” means a procurement process where price or technical proposals, or both, and qualifications are submitted in response to a request for proposals without first narrowing the field of prospective qualified responsible bidders with a request for qualifications. (b) Except as provided in par. (c), for all projects procured under this section, the department shall use 2-phase selection procedures that conform to the requirements in 23 CFR part 636, subparts B, C, D, and E. (c) If the department determines the process under par. (b) is not appropriate for procuring a project under this section, the department may use a single-phase selection process that conforms to the requirements in 23 CFR part 636, subparts B, C, D, and E. (10) LIABILITY. (a) Nothing in this section shall be construed as relieving a contractor of 3rd-party liability or liability for loss or damage to property of the state or a county or municipality. (b) All design services, including architectural and engineering services, provided under this section are services and not products. (11) STIPULATED FEE. (a) For design-build projects, the department shall award a stipulated fee, as published in the request for proposals, of not less than three-tenths of 1 percent of the department’s estimated cost of design and construction. For other alternative project delivery methods, if included in the notice of solicitation, the department may award a stipulated fee of not less than three-tenths of 1 percent of the department’s estimated cost of design and construction. The department shall award fees under this subsection as follows: 1. To each qualified responsible bidder whose proposal is determined by the technical review committee to be responsive but who is not awarded the contract. 2. To each qualified responsible bidder whose proposal is determined by the technical review committee to be responsive, if the department cancels or otherwise fails to award the contract. 3. To each qualified responsible bidder if the department cancels the solicitation before the review of proposals. (b) The department shall pay the fee to each qualified responsible bidder under par. (a) no later than 90 days after the department executes the contract, cancels or otherwise fails to award the contract after the review of proposals, or cancels the solicitation before the review of proposals. (c) In consideration for paying the fee, the department may use work product contained in an unsuccessful proposal in connection with any project without making any additional compensation to that qualified responsible bidder. If an unsuccessful qualified responsible bidder waives the fee, the department may not use work product in that qualified responsible bidder’s unsuccessful proposal. (d) Fees required under this section shall be considered a cost of the project for which the department solicited technical proposals and shall be payable from the appropriation account from which the department pays construction costs for the project. (e) For purposes of this subsection, a single-phase proposer under sub. (4) (c) shall be considered a qualified responsible bidder. (f) Notwithstanding par. (a), the department may restrict the number of qualified responsible bidders eligible for payment under this subsection in the notice of solicitation for a single-phase selection process under sub. (4) (c). (12) RULES. The department may promulgate rules necessary to implement this section. (15) RECORDS. (a) A project using alternative project delivery is considered an active procurement from the date of release of the request for qualifications, or publication of solicitation using a single-phase process under sub. (4) (c), to the date of notification of selection of the successful qualified responsible bidder or proposer. While the project is an active procurement, the department or the technical review committee may not make the documents submitted by respondents, proposers, or qualified responsible bidders available for public inspection or copying. (b) Notwithstanding s. 19.35, if a qualified responsible bidder or proposer waives a fee to which they are entitled under sub. (11) (a), all documents submitted by the qualified responsible bidder or proposer remain the property of the qualified responsible bidder or proposer and shall remain confidential and may not be disclosed as a public record.
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