Wisconsin Legislative Council
AMENDMENT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Memo published: September 13, 2023 Contact: David Moore, Senior Staff Attorney
2023 Senate Bill 270
Senate
Amendment 2
BACKGROUND
Current law governs the process for the relocation of a utility facility
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that is located within the right-of-
way of a proposed state trunk highway improvement project (project). Key steps in this process are as
follows:
The Department of Transportation (DOT) notifies a utility facility owner (owner) of the project.
The owner provides DOT with a work plan that verifies the location of each utility facility and
includes a schedule of working days to accomplish the relocation.
If DOT approves the work plan, DOT notifies the owner of the date on which the owner may proceed
with relocation work.
If a change in the project requires additional utility facility relocation, DOT must reimburse the
owner for the additional work.
Under DOT’s administrative rules, if an owner fails to provide a work plan or fails to complete a
relocation in accordance with an approved work plan, the owner is liable to the contractor for delay
costs and liquidated damages incurred by the contractor which are caused by or which grow out of
failure of the owner to complete its work in accordance with the approved work plan.
2023 SENATE BILL 270
2023 Senate Bill 270 addresses responsibility for costs incurred as a result of a utility relocation delay.
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The bill establishes in statute a modified version of the administrative rules described above, and
amends the administrative code to reflect that revised process. Under the bill, this process is as follows:
A contractor that incurs costs as a result of a utility relocation delay may file a damages claim with
DOT, which must notify the owner of the receipt of a claim.
The owner may provide additional information relating to the claim.
If DOT determines that a utility relocation delay occurred, DOT must compensate the contractor for
the costs incurred as a result of the delay and may not impose liquidated damages.
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“Utility facility” means any pipe, pipeline, duct, wire line, conduit, pole, tower, equipment, or other structure, whether
above ground or underground, used for the transmission, distribution, or delivery of electrical power or light, heat,
water, gas, sewer, or telegraph or telecommunication services.
2
“Utility relocation delay” means a change in operations of a contractor or the rescheduling of work by a contractor that
is caused by the uncompleted relocation or adjustment of a utility facility located in the right-of-way, regardless of
whether the relocation or adjustment of the utility facility is identified in a work plan submitted to DOT by the owner. - 2 -
The amount of compensation is calculated and paid in accordance with DOT’s standard
specifications for compensable delays.
If the delay was caused by the owner’s failure to complete a relocation in accordance with an
approved work plan, the owner is liable to DOT for the compensation it paid to the contractor. The
owner must make payment to DOT within 60 days after receiving notice of the amount owed. If the
owner had responded to the notification from DOT that DOT had received a damages claim, the
owner may request a contested case hearing, in which case any amount owed is stayed pending that
appeal.
The owner is not liable if the failure to complete a relocation was caused by circumstances outside of
the owner’s reasonable control.
If an owner fails to pay DOT an amount owed, DOT may seek judicial remedies against the owner
but may not consider amounts paid or owed in any other matter involving the owner.
Finally, the bill requires DOT to: (1) update its standard specifications for compensable delays to
conform to changes made by the bill not later than the last day of the first month following the effective
date of the bill; and (2) submit a report to the Joint Committee on Finance (JCF) within four years of
the effective date of the bill detailing utility relocation damages claims received by DOT. Not later than
six months after receiving the report, JCF shall make a recommendation to the Legislature regarding
whether the changes made by the bill should be amended or repealed.
SENATE AMENDMENT 2
Senate Amendment 2 makes the following changes to the bill. The amendment:
Requires the owner to make payment to DOT within 90 days (rather than 60 days).
Specifies that circumstances outside of the owner’s reasonable control include a delay caused by
another owner identified in the work plan or reliance on a third party to identify and verify the
location of a utility facility requiring relocation and clarifies that the determination of whether
circumstances are outside of the owner’s reasonable control is determined by DOT upon
consideration of any information that had been provided by the owner to DOT.
Clarifies that an owner may not request a contested case hearing on DOT’s decision that a delay was
caused by the owner’s failure to complete a relocation unless the owner had provided additional
information upon being notified that DOT had received a damages claim. The amendment also
requires that the request for the contested case hearing be made within 90 days after the owner
receives notice of the amount owed, and that a hearing be scheduled.
Clarifies that the prohibition on DOT imposing liquidated damages means liquidated damages for
work required by the contract that is not completed within the contract time or within extra time
allowed by DOT as a result of the utility relocation delay.
Requires DOT to update its standard specifications not later than 60 days (rather than the last day
of the first month) after the effective date of the bill.
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BILL HISTORY
Senator Tomczyk offered Senate Amendment 2 to Senate Bill 270 on August 22, 2023. On September 6,
2023, the Senate Committee on Transportation and Local Government voted unanimously to
recommend adoption of Senate Amendment 2 and passage of Senate Bill 270, as amended.
For a full history of the bill, visit the Legislature’s bill history page.
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