Can Wisconsin municipalities 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 inconsistent with the requirement that cities and villages award public construction contracts to the lowest responsible bidder using a competitive bidding process. See Wis. Stat. § 62.15 (cities), and § 61.54 (villages). As the Wisconsin Court of Appeals stated in J.F. Ahern Co. v. Wisconsin State Bldg. Comm’r, 114 Wis. 2d 69, 77, 336 N.W.2d 679 (Ct. App. 1982), “[t]he 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. For example, municipalities are expressly authorized to use the design/build approach when contracting for acquisition of any element of a resource recovery and recycling facility. Wis. Stat. §§ 61.57 and 62.155. Additionally, the courts have recognized that “there are circumstances where it is impossible or impracticable to draw specifications satisfactorily to permit competitive bidding.” See Waste Mgmt. Inc. v. Wisconsin Solid Waste Recycling Auth., 84 Wis. 2d 462,472, 267 N.W.2d 609 (1978).

(rev. 12/21)