Contracts FAQ 16

Can municipalities in Wisconsin enter into design/build public construction contracts?

Generally speaking, no. Under a design/build approach to public construction, the municipality contracts with a single entity to provide both the design and construction. Such an approach is not consistent with the requirement that cities and villages award public construction contracts to the lowest responsible bidder using a competitive bidding process. See Wis. Stat. sec. 62.15 (cities), and sec. 61.55 (villages). As the Wisconsin Court of Appeals stated in J.F. Ahern Co. v. Wisconsin State Building Commissioner, 114 Wis.2d 69, 77, 336 N.W.2d 679 (Ct. App. 1982), "The design/build process differs from the conventional procedure by which a building is first designed and contractors then submit bids to construct it, based on the plans, as provided in [the state competitive bid statute]."

However, a municipality can use the design/build process if specifically authorized by statute to use such an approach or if the work falls within an exemption from the competitive bidding requirements. Municipalities are expressly authorized, for example, to use the design/build approach when contracting for acquisition of any element of a resource recovery and recycling facility. Wis. Stat. secs. 61.57 and 62.155. In addition, the courts have recognized that competitive bidding is unnecessary, and a design/build approach is permissible, when it is truly impractical or impossible to draft specifications. See Waste Management Inc. v. Wisconsin Solid Waste Recycling Authority, 84 Wis.2d 462, 267 N.W.2d 609 (1978).