CHAPTER 4. PROCUREMENT PROCESS
IC 8-15.7-4
Chapter 4. Procurement Process
IC 8-15.7-4-1
Request for proposals; required studies; public hearing
Sec. 1. (a) The department may request proposals from privateentities for all or part of the development, financing, and operationof one (1) or more projects.
(b) If all or part of the project will consist of a tollway, thedepartment shall take the following steps before the commencementof the procurement process under this chapter:
(1) Except as provided by subsection (c), the department shallcause to be prepared a preliminary feasibility study and aneconomic impact study on that part of the project consisting ofa tollway by a firm or firms internationally recognized in thepreparation of studies or reports on the financial feasibility andeconomic impact of proposed toll road projects. Before thepreparation of the preliminary feasibility study and theeconomic impact study, the department must conduct a publichearing on the proposed studies in the county seat of the countyin which the proposed project would be located. At least ten(10) days before each public hearing, the authority shall:
(A) post notice of the public hearing on the department'sInternet web site;
(B) publish notice of the public hearing one (1) time inaccordance with IC 5-3-1 in two (2) newspapers of generalcirculation in the county in which the proposed projectwould be located; and
(C) include in the notices under clauses (A) and (B):
(i) the date, time, and place of the hearing;
(ii) the subject matter of the hearing;
(iii) a description of the purpose of the proposedpreliminary feasibility study and economic impact study;and
(iv) a description of the proposed project and its location.
At the hearing, the department shall allow the public to be heardon the proposed studies and the proposed project.
(2) The preliminary feasibility study must be based upon apublic-private financial and project delivery structure. Theeconomic impact study must, at a minimum, include an analysisof the following matters with respect to the proposed project:
(A) Economic impacts on existing commercial and industrialdevelopment.
(B) Potential impacts on employment.
(C) Potential for future development near the project area,including consideration of locations for interchanges thatwill maximize opportunities for development.
(D) Fiscal impacts on revenues to local units of government.
(E) Demands on government services, such as public safety,public works, education, zoning and building, and local
airports.
The department shall post copies of the preliminary feasibilitystudy and the economic impact study on the department'sInternet web site and shall also provide copies of the studies tothe governor and to the legislative council (in an electronicformat under IC 5-14-6).
(3) After the completion of the preliminary feasibility study andthe economic impact statement, the department shall schedulea public hearing on the proposed project and the studies in thecounty seat of the county that would be an affected jurisdictionfor purposes of the proposed project. At least ten (10) daysbefore the public hearing, the department shall:
(A) post notice of the public hearing on the department'sInternet web site;
(B) publish notice of the hearing one (1) time in accordancewith IC 5-3-1 in two (2) newspapers of general circulation inthe county; and
(C) include the following in the notices under clauses (A)and (B):
(i) The date, time, and place of the hearing.
(ii) The subject matter of the hearing.
(iii) A description of the proposed project, its location, thepart of the project consisting of a tollway, and, consistentwith the assessments reached in the preliminary feasibilitystudy, the estimated total cost of the acquisition,construction, installation, equipping, and improving of theproposed project, as well as the part of the projectconsisting of a tollway.
(iv) The address and telephone number of the department.
(v) A statement concerning the availability of thepreliminary feasibility study and the economic impactstudy on the department's Internet web site.
(4) At the hearing, the department shall allow the public to beheard on the proposed project, the preliminary feasibility study,and the economic impact study.
(5) After the completion of the public hearings described insubdivision (3), the department shall submit the preliminaryfeasibility study and the economic impact study to the budgetcommittee for its review before the commencement of theprocurement process under this chapter.
(c) The following provisions apply if the department determinesthat a feasibility study for the Illiana Expressway that was preparedbefore March 15, 2010, meets the requirements of subsection (b)concerning the preparation of a preliminary feasibility study:
(1) The department is not required to prepare an additionalpreliminary feasibility study.
(2) The requirement under subsection (b)(1) for a publichearing before preparation of a preliminary feasibility studydoes not apply. However, the requirement under subsection(b)(1) for a public hearing on the economic impact study does
apply.
(3) The feasibility study prepared before March 15, 2010, isconsidered to be the preliminary feasibility study for purposesof subsection (b)(3) through (b)(5).
As added by P.L.47-2006, SEC.40. Amended by P.L.85-2010,SEC.16.
IC 8-15.7-4-2
Competitive proposal procedure; request for qualifications; publichearing on preliminary selection and agreement
Sec. 2. (a) This section establishes the competitive proposalprocedure that the department shall use to enter into a public-privateagreement with an operator under this article.
(b) The department may pursue a competitive proposal procedureusing a request for qualifications and a request for proposals processor proceed directly to a request for proposals.
(c) If the department elects to use a request for qualificationsphase, it must provide a public notice of the request forqualifications, for the period considered appropriate by thedepartment, before the date set for receipt of submittals in responseto the solicitation. The department shall provide the notice by postingin a designated public area and publication in a newspaper of generalcirculation, in the manner provided by IC 5-3-1. In addition,submittals in response to the solicitation may be solicited directlyfrom potential offerors.
(d) The department shall evaluate qualification submittals basedon the requirements and evaluation criteria set forth in the request forqualifications.
(e) If the department has undertaken a request for qualificationsphase resulting in one (1) or more prequalified or shortlisted offerors,the request for proposals shall be limited to those offerors that havebeen prequalified or shortlisted.
(f) If the department has not issued a request for qualificationsand intends to use only a one (1) phase request for proposalsprocurement, the department must provide a public notice of therequest for proposals for the period considered appropriate by thedepartment, before the date set for receipt of proposals. Thedepartment shall provide the notice by posting in a designated publicarea and publication in a newspaper of general circulation, in themanner provided by IC 5-3-1. In addition, proposals may be soliciteddirectly from potential offerors.
(g) The department shall submit a draft of the request forproposals to the budget committee for its review before the issuanceby the department of the request for proposals to potential offerors.The request for proposals must:
(1) indicate in general terms the scope of work, goods, andservices sought to be procured;
(2) contain or incorporate by reference the specifications andcontractual terms and conditions applicable to the procurementand the qualifying project; (3) specify the factors, criteria, and other information that willbe used in evaluating the proposals;
(4) specify any requirements or goals for use of:
(A) minority business enterprises and women's businessenterprises certified under IC 4-13-16.5;
(B) disadvantaged business enterprises under federal or statelaw;
(C) businesses defined under IC 5-22-15-20.5 as Indianabusinesses, to the extent permitted by applicable federal andstate law and regulations; and
(D) businesses that qualify for a small business set-asideunder IC 4-13.6-2-11;
(5) if all or part of the project will consist of a tollway, requireany offeror to submit a proposal based upon that part of theproject that will consist of a tollway, as set forth in the requestfor proposals, and permit any offeror to submit one (1) or morealternative proposals based upon the assumption that a differentpart or none of the project will consist of a tollway;
(6) contain or incorporate by reference the other applicablecontractual terms and conditions; and
(7) contain or incorporate by reference any other provisions,materials, or documents that the department considersappropriate.
(h) The department shall determine the evaluation criteria that areappropriate for each project and shall set those criteria forth in therequest for proposals. The department may use a selection processthat results in selection of the proposal offering the best value to thepublic, a selection process that results in selection of the proposaloffering the lowest price or cost or the highest payment to, orrevenue sharing with, the department, or any other selection processthat the department determines is in the best interests of the state andthe public.
(i) The department shall evaluate proposals based on therequirements and evaluation criteria set forth in the request forproposals.
(j) The department may select one (1) or more offerors fornegotiations based on the evaluation criteria set forth in the requestfor proposals. If the department believes that negotiations with theselected offeror or offerors are not likely to result in a public-privateagreement, or, in the case of a best value selection process, no longerreflect the best value to the state and the public, the department maycommence negotiations with other responsive offerors, if any, andmay suspend, terminate, or continue negotiations with the originalofferor or offerors. If negotiations are unsuccessful, the departmentshall terminate the procurement, may not award the public-privateagreement, and may commence a new procurement for apublic-private agreement. If the department determines thatnegotiations with an offeror have been successfully completed, thedepartment shall, subject to the other requirements of this article,award the public-private agreement to the offeror. (k) Before awarding a public-private agreement to an operator, thedepartment shall schedule a public hearing on the preliminaryselection of the operator and the terms of the proposed public-privateagreement. The hearing shall be conducted in the county seat of thecounty that would be an affected jurisdiction for purposes of theproposed project. The department shall do the following:
(1) At least ten (10) days before the public hearing, post on thedepartment's Internet web site:
(A) the proposal submitted by the offeror that has beenpreliminarily selected as the operator for the project, exceptfor those parts of the proposal that are confidential underthis article; and
(B) the proposed public-private agreement for the project.
(2) At least ten (10) days before the public hearing:
(A) post notice of the public hearing on the department'sInternet web site; and
(B) publish notice of the hearing one (1) time in accordancewith IC 5-3-1 in two (2) newspapers of general circulation inthe county that would be an affected jurisdiction forpurposes of the proposed project.
(3) Include the following in the notices required by subdivision(2):
(A) The date, time, and place of the hearing.
(B) The subject matter of the hearing.
(C) A description of the agreement to be awarded.
(D) The recommendation that has been made to award theagreement to an identified offeror or offerors.
(E) The address and telephone number of the department.
(F) A statement indicating that, subject to section 6 of thischapter, and except for those portions that are confidentialunder IC 5-14-3, the following are available on thedepartment's Internet web site and are also available forpublic inspection and copying at the principal office of thedepartment during regular business hours:
(i) The selected offer.
(ii) An explanation of the basis upon which thepreliminary selection was made.
(iii) The proposed public-private agreement for theproject.
(l) At the hearing, the department shall allow the public to beheard on the preliminary selection of the operator and the terms ofthe proposed public-private agreement.
(m) When the terms and conditions of multiple awards arespecified in the request for proposals, awards may be made to morethan one (1) offeror.
As added by P.L.47-2006, SEC.40. Amended by P.L.85-2010,SEC.17.
IC 8-15.7-4-3
Designation of operator; publication of notice; execution of
public-private agreement; action to contest validity
Sec. 3. (a) After the procedures required in this chapter have beencompleted, the department shall make a determination as to whetherthe successful offeror should be designated as the operator for theproject and shall submit its decision to the governor and the budgetcommittee.
(b) After review of the department's determination by the budgetcommittee, the governor may accept or reject the determination ofthe department. If the governor accepts the determination of thedepartment, the governor shall designate the successful offeror as theoperator for the project. The department shall publish notice of thedesignation of the operator one (1) time, in accordance with IC 5-3-1.
(c) After the designation of the successful offeror as the operatorfor the project, the department may execute the public-privateagreement.
(d) An action to contest the validity of a public-private agreemententered into under this chapter may not be brought after the fifteenthday following the publication of the notice of the designation of theoperator under the public-private agreement under subsection (b).
As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-4
Use of work product from unsuccessful proposal
Sec. 4. The department may pay a stipulated amount to anunsuccessful offeror that submits a responsive proposal in responseto a request for proposals under this chapter, in exchange for thework product contained in that proposal. The use by the departmentof any design element contained in an unsuccessful proposal is at thesole risk and discretion of the department and does not conferliability on the recipient of the stipulated amount under this section.After payment of the stipulated amount:
(1) the department and the unsuccessful offeror jointly own therights to, and may make use of any work product contained in,the proposal, including the technologies, techniques, methods,processes, ideas, and information contained in the proposal,project design, and project financial plan; and
(2) the use by the unsuccessful offeror of any part of the workproduct contained in the proposal is at the sole risk of theunsuccessful offeror and does not confer liability on thedepartment.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-5
Power to withdraw or modify request, seek revised proposals, ordecline to award a public-private agreement
Sec. 5. In addition to any other rights under this article, inconnection with any procurement under this chapter, the departmentmay:
(1) withdraw a request for qualifications or a request forproposals at any time and, in its discretion, publish a new
request for qualifications or request for proposals;
(2) decline to award a public-private agreement for any reason;
(3) request clarifications to any qualification submittal orrequest for proposals or seek one (1) or more revised proposalsor one (1) or more best and final offers;
(4) modify the terms, provisions, and conditions of a request forqualification, request for proposals, technical specifications, orform of public-private agreement during the pendency of aprocurement; and
(5) interview offerors.
As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-6
Disclosure of contents of proposals
Sec. 6. (a) The department may not disclose the contents ofproposals during discussions or negotiations with potential offerors.
(b) The department may, in its discretion in accordance withIC 5-14-3, treat as confidential all records relating to discussions ornegotiations between the department and potential offerors if thoserecords are created while discussions or negotiations are in progress.
(c) Notwithstanding subsections (a) and (b), and with theexception of portions that are confidential under IC 5-14-3, the termsof the selected offer negotiated under this article shall be availablefor inspection and copying under IC 5-14-3 after negotiations withthe offerors have been completed.
(d) When disclosing the terms of the selected offer undersubsection (c), the department shall certify that the information beingdisclosed accurately and completely represents the terms of theselected offer.
(e) The department 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 section5 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.40.