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).