CHAPTER 4. SELECTION OF OPERATOR BY REQUEST FOR PROPOSALS
IC 8-15.5-4
Chapter 4. Selection of Operator by Request for Proposals
IC 8-15.5-4-1
Request for proposals required
Sec. 1. Before entering into a public-private agreement under thisarticle, the authority must issue a request for proposals as set forth inthis chapter. A request for proposals for a toll road project may beissued by the authority in one (1) or more phases and may include arequest for qualifications.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-1.5
Required studies; public hearing
Sec. 1.5. (a) The authority may not issue a request for proposalsfor a toll road project under this article unless the authority hasreceived a preliminary feasibility study and an economic impactstudy for the project from the department, prepared in the samemanner as required by IC 8-15.7-4-1.
(b) The economic impact study must, at a minimum, include ananalysis of the following matters with respect to the proposedproject:
(1) Economic impacts on existing commercial and industrialdevelopment.
(2) Potential impacts on employment.
(3) Potential for future development near the project area,including consideration of locations for interchanges that willmaximize opportunities for development.
(4) Fiscal impacts on revenues to local units of government.
(5) Demands on government services, such as public safety,public works, education, zoning and building, and local airports.
The authority shall post a copy of the economic impact study on theauthority's Internet web site and shall also provide copies of the studyto the governor and the legislative council (in an electronic formatunder IC 5-14-6).
(c) After completion of the economic impact study, the authoritymust conduct a public hearing on the results of the study in thecounty seat of the county in which the proposed project would belocated. At least ten (10) days before each public hearing, theauthority shall:
(1) post notice of the public hearing on the authority's Internetweb site;
(2) publish notice of the public hearing one (1) time inaccordance with IC 5-3-1 in two (2) newspapers of generalcirculation in the county; and
(3) include in the notices under subdivisions (1) and (2):
(A) the date, time, and place of the hearing;
(B) the subject matter of the hearing;
(C) a description of the purpose of the economic impactstudy; (D) a description of the proposed project and its location;and
(E) a statement concerning the availability of the study onthe authority's Internet web site.
At the hearing, the authority shall allow the public to be heard on theeconomic impact study and the proposed project.
As added by P.L.85-2010, SEC.7.
IC 8-15.5-4-2
Contents of request for proposals
Sec. 2. A request for proposals issued by the authority mustinclude the following:
(1) The factors or criteria that will be used in evaluating theproposals.
(2) A statement that a proposal must be accompanied byevidence of financial responsibility as considered appropriateand satisfactory by the authority.
(3) A statement concerning whether discussions may beconducted with the offerors for the purpose of clarification toassure full understanding of and responsiveness to thesolicitation requirements.
(4) A statement concerning any other information that theauthority may consider in evaluating the proposals.
(5) A statement that, except as otherwise required by law orunder order from a court with jurisdiction, the authority may notdisclose the contents of proposals during:
(A) discussions; or
(B) negotiations;
with eligible offerors to other eligible offerors.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-3
Notice of request for proposals
Sec. 3. Notice of a request for proposals shall be given bypublication in accordance with IC 5-3-1.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-4
Discussions with offerors
Sec. 4. As provided in a request for proposals, discussions may beconducted with the offerors for the purpose of clarification to assurefull understanding of and responsiveness to the solicitationrequirements.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-5
Fair and equal treatment of offerors
Sec. 5. Eligible offerors must be accorded fair and equal treatmentwith respect to any opportunity for discussion and revision ofproposals.As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-6
Access to contents of proposals
Sec. 6. (a) The authority may not disclose the contents ofproposals during discussions or negotiations with eligible offerors.
(b) The authority may, in its discretion in accordance withIC 5-14-3, treat as confidential all records relating to discussions ornegotiations between the authority and eligible offerors if thoserecords are created while discussions or negotiations are in progress.
(c) Notwithstanding subsections (a) and (b), and with theexception of parts that are confidential under IC 5-14-3, the terms ofthe selected offer negotiated under this article shall be available forinspection and copying under IC 5-14-3 after negotiations with theofferors have been completed.
(d) When disclosing the terms of the selected offer undersubsection (c), the authority shall certify that the information beingdisclosed accurately and completely represents the terms of theselected offer.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-7
Negotiations with offerors
Sec. 7. (a) The authority shall negotiate with one (1) or moreresponsible offerors who submit proposals that are determined to bereasonably capable of being selected for a public-private agreementand may seek to obtain a final offer from one (1) or more responsibleofferors.
(b) In determining whether one (1) or more responsible offerorsare reasonably capable of being selected for a public-privateagreement, the authority must consider all the following:
(1) The responsible offeror's expertise, qualifications,competence, skills, and know-how to perform its obligationsunder the proposed public-private agreement in accordance withthe public-private agreement.
(2) The financial strength of the responsible offeror, includingits capitalization.
(3) The experience of the responsible offeror in operating tollroads and highways and other similar projects and the qualityof the responsible offeror's past or present performance on othersimilar or equivalent projects.
(4) The integrity, background, and reputation of the responsibleofferor, including the absence of criminal, civil, or regulatoryclaims or actions against the responsible offeror.
(c) The requirements set forth in subsection (b) also apply to theapproval by the authority of any successor or replacement operatorunder the public-private agreement after the execution of thepublic-private agreement under section 11 of this chapter.
(d) In making its determination under subsection (b) or (c), theauthority shall consider the offeror or operator as well as any private
entity that controls the actions of the offeror or operator.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-8
Preliminary selection of offeror or termination of process
Sec. 8. After the final offers from responsible offerors have beennegotiated under section 7 of this chapter, the authority shall:
(1) make a preliminary selection of an offeror as the operatorfor the related toll road project, whose final offer is referred toin this article as the "selected offer"; or
(2) terminate the request for proposal process.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-9
Public hearing on preliminary selection and agreement
Sec. 9. (a) If the authority makes a preliminary selection of anoperator under section 8 of this chapter, the authority shall schedulea public hearing on the preliminary selection and the terms of thepublic-private agreement for the project. The hearing shall beconducted in the county seat of the county in which the proposedproject is to be located.
(b) At least ten (10) days before the public hearing, the authorityshall post on its Internet web site:
(1) the proposal submitted by the offeror that has beenpreliminarily selected as the operator for the project, except forthose parts of the proposal that are confidential under thisarticle; and
(2) the proposed public-private agreement for the project.
(c) At least ten (10) days before the public hearing, the authorityshall:
(1) post notice of the public hearing on the authority's Internetweb site; and
(2) publish notice of the hearing one (1) time in accordancewith IC 5-3-1 in two (2) newspapers of general circulation inthe county in which the proposed project is to be located.
(d) The notices required by subsection (c) must include thefollowing:
(1) The date, time, and place of the hearing.
(2) The subject matter of the hearing.
(3) A description of the related toll road project and of thepublic-private agreement to be awarded.
(4) The identity of the offeror that has been preliminarilyselected as the operator for the project.
(5) The address and telephone number of the authority.
(6) A statement indicating that, subject to section 6 of thischapter, and except for those portions that are confidentialunder this chapter, the following are available on the authority'sInternet web site and are also available for public inspectionand copying at the principal office of the authority duringregular business hours: (A) The selected offer.
(B) An explanation of the basis upon which the preliminaryselection was made.
(C) The proposed public-private agreement for the project.
(e) At the hearing, the authority shall allow the public to be heardon the preliminary selection of the operator for the proposed projectand the terms of the public-private agreement for the proposedproject.
As added by P.L.47-2006, SEC.39. Amended by P.L.85-2010, SEC.8.
IC 8-15.5-4-10
Access to selected offer
Sec. 10. (a) Subject to section 6 of this chapter, and except forthose parts that are confidential under IC 5-14-3, the selected offerand a written explanation of the basis upon which the preliminaryselection was made shall be made available for inspection andcopying in accordance with IC 5-14-3 at least seven (7) days beforethe hearing scheduled under section 9 of this chapter.
(b) At the hearing, the authority shall allow the public to be heardon the preliminary selection.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-11
Designation of operator; publication of notice; execution ofpublic-private agreement
Sec. 11. (a) After the procedures required in this chapter havebeen completed, the authority shall make a determination as towhether the offeror that submitted the selected offer should bedesignated as the operator for the related toll road project and shallsubmit the authority's determination to the governor and the budgetcommittee.
(b) After review of the authority's determination by the budgetcommittee, the governor may accept or reject the determination ofthe authority. If the governor accepts the determination of theauthority, the governor shall designate the offeror who submitted theselected offer as the operator for the related toll road project. Theauthority shall publish notice of the designation of the operator forthe related toll road project one (1) time, in accordance withIC 5-3-1.
(c) After the designation of the operator for the related toll roadproject, the authority may execute the public-private agreement withthat operator.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-12
Action to contest validity of public-private agreement
Sec. 12. Any action to contest the validity of a public-privateagreement entered into under this chapter may not be brought afterthe fifteenth day following the publication of the notice of thedesignation of an operator under the public-private agreement as
provided in section 11 of this chapter.
As added by P.L.47-2006, SEC.39.
IC 8-15.5-4-13
Disclosure of contents of proposals
Sec. 13. The authority shall disclose the contents of all proposals,except the parts of the proposals that may be treated as confidentialin accordance with IC 5-14-3, when either:
(1) the request for proposal process is terminated under section8 of this chapter; or
(2) the public-private agreement has been executed and theclosing for each financing transaction required to providefunding to carry out the agreement has been conducted.
As added by P.L.47-2006, SEC.39.