IC 8-15.7-4-1 Request for proposals; required studies; public hearing
Sec. 1. (a) The department may request proposals from private
entities for all or part of the development, financing, and operation
of one (1) or more projects.
(b) If all or part of the project will consist of a tollway, the
department shall take the following steps before the commencement
of the procurement process under this chapter:
(1) Except as provided by subsection (c), the department shall
cause to be prepared a preliminary feasibility study and an
economic impact study on that part of the project consisting of
a tollway by a firm or firms internationally recognized in the
preparation of studies or reports on the financial feasibility and
economic impact of proposed toll road projects. Before the
preparation of the preliminary feasibility study and the
economic impact study, the department must conduct a public
hearing on the proposed studies in the county seat of the county
in 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's
Internet web site;
(B) publish notice of the public hearing one (1) time in
accordance with IC 5-3-1 in two (2) newspapers of general
circulation in the county in which the proposed project
would 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 proposed
preliminary 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 heard
on the proposed studies and the proposed project.
(2) The preliminary feasibility study must be based upon a
public-private financial and project delivery structure. The
economic impact study must, at a minimum, include an analysis
of the following matters with respect to the proposed project:
(A) Economic impacts on existing commercial and industrial
development.
(B) Potential impacts on employment.
(C) Potential for future development near the project area,
including consideration of locations for interchanges that
will 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 feasibility
study and the economic impact study on the department's
Internet web site and shall also provide copies of the studies to
the governor and to the legislative council (in an electronic
format under IC 5-14-6).
(3) After the completion of the preliminary feasibility study and
the economic impact statement, the department shall schedule
a public hearing on the proposed project and the studies in the
county seat of the county that would be an affected jurisdiction
for purposes of the proposed project. At least ten (10) days
before the public hearing, the department shall:
(A) post notice of the public hearing on the department's
Internet web site;
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the 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, the
part of the project consisting of a tollway, and, consistent
with the assessments reached in the preliminary feasibility
study, the estimated total cost of the acquisition,
construction, installation, equipping, and improving of the
proposed project, as well as the part of the project
consisting of a tollway.
(iv) The address and telephone number of the department.
(v) A statement concerning the availability of the
preliminary feasibility study and the economic impact
study on the department's Internet web site.
(4) At the hearing, the department shall allow the public to be
heard on the proposed project, the preliminary feasibility study,
and the economic impact study.
(5) After the completion of the public hearings described in
subdivision (3), the department shall submit the preliminary
feasibility study and the economic impact study to the budget
committee for its review before the commencement of the
procurement process under this chapter.
(c) The following provisions apply if the department determines
that a feasibility study for the Illiana Expressway that was prepared
before 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 additional
preliminary feasibility study.
(2) The requirement under subsection (b)(1) for a public
hearing before preparation of a preliminary feasibility study
does 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, is
considered to be the preliminary feasibility study for purposes
of 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; public
hearing on preliminary selection and agreement
Sec. 2. (a) This section establishes the competitive proposal
procedure that the department shall use to enter into a public-private
agreement with an operator under this article.
(b) The department may pursue a competitive proposal procedure
using a request for qualifications and a request for proposals process
or proceed directly to a request for proposals.
(c) If the department elects to use a request for qualifications
phase, it must provide a public notice of the request for
qualifications, for the period considered appropriate by the
department, before the date set for receipt of submittals in response
to the solicitation. The department shall provide the notice by posting
in a designated public area and publication in a newspaper of general
circulation, in the manner provided by IC 5-3-1. In addition,
submittals in response to the solicitation may be solicited directly
from potential offerors.
(d) The department shall evaluate qualification submittals based
on the requirements and evaluation criteria set forth in the request for
qualifications.
(e) If the department has undertaken a request for qualifications
phase resulting in one (1) or more prequalified or shortlisted offerors,
the request for proposals shall be limited to those offerors that have
been prequalified or shortlisted.
(f) If the department has not issued a request for qualifications
and intends to use only a one (1) phase request for proposals
procurement, the department must provide a public notice of the
request for proposals for the period considered appropriate by the
department, before the date set for receipt of proposals. The
department shall provide the notice by posting in a designated public
area and publication in a newspaper of general circulation, in the
manner provided by IC 5-3-1. In addition, proposals may be solicited
directly from potential offerors.
(g) The department shall submit a draft of the request for
proposals to the budget committee for its review before the issuance
by 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, and
services sought to be procured;
(2) contain or incorporate by reference the specifications and
contractual terms and conditions applicable to the procurement
and the qualifying project;
(3) specify the factors, criteria, and other information that will
be used in evaluating the proposals;
(4) specify any requirements or goals for use of:
(A) minority business enterprises and women's business
enterprises certified under IC 4-13-16.5;
(B) disadvantaged business enterprises under federal or state
law;
(C) businesses defined under IC 5-22-15-20.5 as Indiana
businesses, to the extent permitted by applicable federal and
state law and regulations; and
(D) businesses that qualify for a small business set-aside
under IC 4-13.6-2-11;
(5) if all or part of the project will consist of a tollway, require
any offeror to submit a proposal based upon that part of the
project that will consist of a tollway, as set forth in the request
for proposals, and permit any offeror to submit one (1) or more
alternative proposals based upon the assumption that a different
part or none of the project will consist of a tollway;
(6) contain or incorporate by reference the other applicable
contractual terms and conditions; and
(7) contain or incorporate by reference any other provisions,
materials, or documents that the department considers
appropriate.
(h) The department shall determine the evaluation criteria that are
appropriate for each project and shall set those criteria forth in the
request for proposals. The department may use a selection process
that results in selection of the proposal offering the best value to the
public, a selection process that results in selection of the proposal
offering the lowest price or cost or the highest payment to, or
revenue sharing with, the department, or any other selection process
that the department determines is in the best interests of the state and
the public.
(i) The department shall evaluate proposals based on the
requirements and evaluation criteria set forth in the request for
proposals.
(j) The department may select one (1) or more offerors for
negotiations based on the evaluation criteria set forth in the request
for proposals. If the department believes that negotiations with the
selected offeror or offerors are not likely to result in a public-private
agreement, or, in the case of a best value selection process, no longer
reflect the best value to the state and the public, the department may
commence negotiations with other responsive offerors, if any, and
may suspend, terminate, or continue negotiations with the original
offeror or offerors. If negotiations are unsuccessful, the department
shall terminate the procurement, may not award the public-private
agreement, and may commence a new procurement for a
public-private agreement. If the department determines that
negotiations with an offeror have been successfully completed, the
department 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, the
department shall schedule a public hearing on the preliminary
selection of the operator and the terms of the proposed public-private
agreement. The hearing shall be conducted in the county seat of the
county that would be an affected jurisdiction for purposes of the
proposed project. The department shall do the following:
(1) At least ten (10) days before the public hearing, post on the
department's Internet web site:
(A) the proposal submitted by the offeror that has been
preliminarily selected as the operator for the project, except
for those parts of the proposal that are confidential under
this 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's
Internet web site; and
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the county that would be an affected jurisdiction for
purposes 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 the
agreement 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 this
chapter, and except for those portions that are confidential
under IC 5-14-3, the following are available on the
department's Internet web site and are also available for
public inspection and copying at the principal office of the
department during regular business hours:
(i) The selected offer.
(ii) An explanation of the basis upon which the
preliminary selection was made.
(iii) The proposed public-private agreement for the
project.
(l) At the hearing, the department shall allow the public to be
heard on the preliminary selection of the operator and the terms of
the proposed public-private agreement.
(m) When the terms and conditions of multiple awards are
specified in the request for proposals, awards may be made to more
than 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 been
completed, the department shall make a determination as to whether
the successful offeror should be designated as the operator for the
project and shall submit its decision to the governor and the budget
committee.
(b) After review of the department's determination by the budget
committee, the governor may accept or reject the determination of
the department. If the governor accepts the determination of the
department, the governor shall designate the successful offeror as the
operator for the project. The department shall publish notice of the
designation of the operator one (1) time, in accordance with IC 5-3-1.
(c) After the designation of the successful offeror as the operator
for the project, the department may execute the public-private
agreement.
(d) An action to contest the validity of a public-private agreement
entered into under this chapter may not be brought after the fifteenth
day following the publication of the notice of the designation of the
operator 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 an
unsuccessful offeror that submits a responsive proposal in response
to a request for proposals under this chapter, in exchange for the
work product contained in that proposal. The use by the department
of any design element contained in an unsuccessful proposal is at the
sole risk and discretion of the department and does not confer
liability 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 the
rights 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 work
product contained in the proposal is at the sole risk of the
unsuccessful offeror and does not confer liability on the
department. As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-5 Power to withdraw or modify request, seek revised proposals, or
decline to award a public-private agreement
Sec. 5. In addition to any other rights under this article, in
connection with any procurement under this chapter, the department
may:
(1) withdraw a request for qualifications or a request for
proposals 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 or
request for proposals or seek one (1) or more revised proposals
or one (1) or more best and final offers;
(4) modify the terms, provisions, and conditions of a request for
qualification, request for proposals, technical specifications, or
form of public-private agreement during the pendency of a
procurement; 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 of
proposals during discussions or negotiations with potential offerors.
(b) The department may, in its discretion in accordance with
IC 5-14-3, treat as confidential all records relating to discussions or
negotiations between the department and potential offerors if those
records are created while discussions or negotiations are in progress.
(c) Notwithstanding subsections (a) and (b), and with the
exception of portions that are confidential under IC 5-14-3, the terms
of the selected offer negotiated under this article shall be available
for inspection and copying under IC 5-14-3 after negotiations with
the offerors have been completed.
(d) When disclosing the terms of the selected offer under
subsection (c), the department shall certify that the information being
disclosed accurately and completely represents the terms of the
selected offer.
(e) The department shall disclose the contents of all proposals,
except the parts of the proposals that may be treated as confidential
in accordance with IC 5-14-3, when either:
(1) the request for proposal process is terminated under section
5 of this chapter; or
(2) the public-private agreement has been executed and the
closing for each financing transaction required to provide
funding to carry out the agreement has been conducted. As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-1 Request for proposals; required studies; public hearing
Sec. 1. (a) The department may request proposals from private
entities for all or part of the development, financing, and operation
of one (1) or more projects.
(b) If all or part of the project will consist of a tollway, the
department shall take the following steps before the commencement
of the procurement process under this chapter:
(1) Except as provided by subsection (c), the department shall
cause to be prepared a preliminary feasibility study and an
economic impact study on that part of the project consisting of
a tollway by a firm or firms internationally recognized in the
preparation of studies or reports on the financial feasibility and
economic impact of proposed toll road projects. Before the
preparation of the preliminary feasibility study and the
economic impact study, the department must conduct a public
hearing on the proposed studies in the county seat of the county
in 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's
Internet web site;
(B) publish notice of the public hearing one (1) time in
accordance with IC 5-3-1 in two (2) newspapers of general
circulation in the county in which the proposed project
would 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 proposed
preliminary 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 heard
on the proposed studies and the proposed project.
(2) The preliminary feasibility study must be based upon a
public-private financial and project delivery structure. The
economic impact study must, at a minimum, include an analysis
of the following matters with respect to the proposed project:
(A) Economic impacts on existing commercial and industrial
development.
(B) Potential impacts on employment.
(C) Potential for future development near the project area,
including consideration of locations for interchanges that
will 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 feasibility
study and the economic impact study on the department's
Internet web site and shall also provide copies of the studies to
the governor and to the legislative council (in an electronic
format under IC 5-14-6).
(3) After the completion of the preliminary feasibility study and
the economic impact statement, the department shall schedule
a public hearing on the proposed project and the studies in the
county seat of the county that would be an affected jurisdiction
for purposes of the proposed project. At least ten (10) days
before the public hearing, the department shall:
(A) post notice of the public hearing on the department's
Internet web site;
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the 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, the
part of the project consisting of a tollway, and, consistent
with the assessments reached in the preliminary feasibility
study, the estimated total cost of the acquisition,
construction, installation, equipping, and improving of the
proposed project, as well as the part of the project
consisting of a tollway.
(iv) The address and telephone number of the department.
(v) A statement concerning the availability of the
preliminary feasibility study and the economic impact
study on the department's Internet web site.
(4) At the hearing, the department shall allow the public to be
heard on the proposed project, the preliminary feasibility study,
and the economic impact study.
(5) After the completion of the public hearings described in
subdivision (3), the department shall submit the preliminary
feasibility study and the economic impact study to the budget
committee for its review before the commencement of the
procurement process under this chapter.
(c) The following provisions apply if the department determines
that a feasibility study for the Illiana Expressway that was prepared
before 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 additional
preliminary feasibility study.
(2) The requirement under subsection (b)(1) for a public
hearing before preparation of a preliminary feasibility study
does 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, is
considered to be the preliminary feasibility study for purposes
of 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; public
hearing on preliminary selection and agreement
Sec. 2. (a) This section establishes the competitive proposal
procedure that the department shall use to enter into a public-private
agreement with an operator under this article.
(b) The department may pursue a competitive proposal procedure
using a request for qualifications and a request for proposals process
or proceed directly to a request for proposals.
(c) If the department elects to use a request for qualifications
phase, it must provide a public notice of the request for
qualifications, for the period considered appropriate by the
department, before the date set for receipt of submittals in response
to the solicitation. The department shall provide the notice by posting
in a designated public area and publication in a newspaper of general
circulation, in the manner provided by IC 5-3-1. In addition,
submittals in response to the solicitation may be solicited directly
from potential offerors.
(d) The department shall evaluate qualification submittals based
on the requirements and evaluation criteria set forth in the request for
qualifications.
(e) If the department has undertaken a request for qualifications
phase resulting in one (1) or more prequalified or shortlisted offerors,
the request for proposals shall be limited to those offerors that have
been prequalified or shortlisted.
(f) If the department has not issued a request for qualifications
and intends to use only a one (1) phase request for proposals
procurement, the department must provide a public notice of the
request for proposals for the period considered appropriate by the
department, before the date set for receipt of proposals. The
department shall provide the notice by posting in a designated public
area and publication in a newspaper of general circulation, in the
manner provided by IC 5-3-1. In addition, proposals may be solicited
directly from potential offerors.
(g) The department shall submit a draft of the request for
proposals to the budget committee for its review before the issuance
by 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, and
services sought to be procured;
(2) contain or incorporate by reference the specifications and
contractual terms and conditions applicable to the procurement
and the qualifying project;
(3) specify the factors, criteria, and other information that will
be used in evaluating the proposals;
(4) specify any requirements or goals for use of:
(A) minority business enterprises and women's business
enterprises certified under IC 4-13-16.5;
(B) disadvantaged business enterprises under federal or state
law;
(C) businesses defined under IC 5-22-15-20.5 as Indiana
businesses, to the extent permitted by applicable federal and
state law and regulations; and
(D) businesses that qualify for a small business set-aside
under IC 4-13.6-2-11;
(5) if all or part of the project will consist of a tollway, require
any offeror to submit a proposal based upon that part of the
project that will consist of a tollway, as set forth in the request
for proposals, and permit any offeror to submit one (1) or more
alternative proposals based upon the assumption that a different
part or none of the project will consist of a tollway;
(6) contain or incorporate by reference the other applicable
contractual terms and conditions; and
(7) contain or incorporate by reference any other provisions,
materials, or documents that the department considers
appropriate.
(h) The department shall determine the evaluation criteria that are
appropriate for each project and shall set those criteria forth in the
request for proposals. The department may use a selection process
that results in selection of the proposal offering the best value to the
public, a selection process that results in selection of the proposal
offering the lowest price or cost or the highest payment to, or
revenue sharing with, the department, or any other selection process
that the department determines is in the best interests of the state and
the public.
(i) The department shall evaluate proposals based on the
requirements and evaluation criteria set forth in the request for
proposals.
(j) The department may select one (1) or more offerors for
negotiations based on the evaluation criteria set forth in the request
for proposals. If the department believes that negotiations with the
selected offeror or offerors are not likely to result in a public-private
agreement, or, in the case of a best value selection process, no longer
reflect the best value to the state and the public, the department may
commence negotiations with other responsive offerors, if any, and
may suspend, terminate, or continue negotiations with the original
offeror or offerors. If negotiations are unsuccessful, the department
shall terminate the procurement, may not award the public-private
agreement, and may commence a new procurement for a
public-private agreement. If the department determines that
negotiations with an offeror have been successfully completed, the
department 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, the
department shall schedule a public hearing on the preliminary
selection of the operator and the terms of the proposed public-private
agreement. The hearing shall be conducted in the county seat of the
county that would be an affected jurisdiction for purposes of the
proposed project. The department shall do the following:
(1) At least ten (10) days before the public hearing, post on the
department's Internet web site:
(A) the proposal submitted by the offeror that has been
preliminarily selected as the operator for the project, except
for those parts of the proposal that are confidential under
this 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's
Internet web site; and
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the county that would be an affected jurisdiction for
purposes 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 the
agreement 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 this
chapter, and except for those portions that are confidential
under IC 5-14-3, the following are available on the
department's Internet web site and are also available for
public inspection and copying at the principal office of the
department during regular business hours:
(i) The selected offer.
(ii) An explanation of the basis upon which the
preliminary selection was made.
(iii) The proposed public-private agreement for the
project.
(l) At the hearing, the department shall allow the public to be
heard on the preliminary selection of the operator and the terms of
the proposed public-private agreement.
(m) When the terms and conditions of multiple awards are
specified in the request for proposals, awards may be made to more
than 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 been
completed, the department shall make a determination as to whether
the successful offeror should be designated as the operator for the
project and shall submit its decision to the governor and the budget
committee.
(b) After review of the department's determination by the budget
committee, the governor may accept or reject the determination of
the department. If the governor accepts the determination of the
department, the governor shall designate the successful offeror as the
operator for the project. The department shall publish notice of the
designation of the operator one (1) time, in accordance with IC 5-3-1.
(c) After the designation of the successful offeror as the operator
for the project, the department may execute the public-private
agreement.
(d) An action to contest the validity of a public-private agreement
entered into under this chapter may not be brought after the fifteenth
day following the publication of the notice of the designation of the
operator 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 an
unsuccessful offeror that submits a responsive proposal in response
to a request for proposals under this chapter, in exchange for the
work product contained in that proposal. The use by the department
of any design element contained in an unsuccessful proposal is at the
sole risk and discretion of the department and does not confer
liability 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 the
rights 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 work
product contained in the proposal is at the sole risk of the
unsuccessful offeror and does not confer liability on the
department. As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-5 Power to withdraw or modify request, seek revised proposals, or
decline to award a public-private agreement
Sec. 5. In addition to any other rights under this article, in
connection with any procurement under this chapter, the department
may:
(1) withdraw a request for qualifications or a request for
proposals 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 or
request for proposals or seek one (1) or more revised proposals
or one (1) or more best and final offers;
(4) modify the terms, provisions, and conditions of a request for
qualification, request for proposals, technical specifications, or
form of public-private agreement during the pendency of a
procurement; 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 of
proposals during discussions or negotiations with potential offerors.
(b) The department may, in its discretion in accordance with
IC 5-14-3, treat as confidential all records relating to discussions or
negotiations between the department and potential offerors if those
records are created while discussions or negotiations are in progress.
(c) Notwithstanding subsections (a) and (b), and with the
exception of portions that are confidential under IC 5-14-3, the terms
of the selected offer negotiated under this article shall be available
for inspection and copying under IC 5-14-3 after negotiations with
the offerors have been completed.
(d) When disclosing the terms of the selected offer under
subsection (c), the department shall certify that the information being
disclosed accurately and completely represents the terms of the
selected offer.
(e) The department shall disclose the contents of all proposals,
except the parts of the proposals that may be treated as confidential
in accordance with IC 5-14-3, when either:
(1) the request for proposal process is terminated under section
5 of this chapter; or
(2) the public-private agreement has been executed and the
closing for each financing transaction required to provide
funding to carry out the agreement has been conducted. As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-1 Request for proposals; required studies; public hearing
Sec. 1. (a) The department may request proposals from private
entities for all or part of the development, financing, and operation
of one (1) or more projects.
(b) If all or part of the project will consist of a tollway, the
department shall take the following steps before the commencement
of the procurement process under this chapter:
(1) Except as provided by subsection (c), the department shall
cause to be prepared a preliminary feasibility study and an
economic impact study on that part of the project consisting of
a tollway by a firm or firms internationally recognized in the
preparation of studies or reports on the financial feasibility and
economic impact of proposed toll road projects. Before the
preparation of the preliminary feasibility study and the
economic impact study, the department must conduct a public
hearing on the proposed studies in the county seat of the county
in 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's
Internet web site;
(B) publish notice of the public hearing one (1) time in
accordance with IC 5-3-1 in two (2) newspapers of general
circulation in the county in which the proposed project
would 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 proposed
preliminary 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 heard
on the proposed studies and the proposed project.
(2) The preliminary feasibility study must be based upon a
public-private financial and project delivery structure. The
economic impact study must, at a minimum, include an analysis
of the following matters with respect to the proposed project:
(A) Economic impacts on existing commercial and industrial
development.
(B) Potential impacts on employment.
(C) Potential for future development near the project area,
including consideration of locations for interchanges that
will 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 feasibility
study and the economic impact study on the department's
Internet web site and shall also provide copies of the studies to
the governor and to the legislative council (in an electronic
format under IC 5-14-6).
(3) After the completion of the preliminary feasibility study and
the economic impact statement, the department shall schedule
a public hearing on the proposed project and the studies in the
county seat of the county that would be an affected jurisdiction
for purposes of the proposed project. At least ten (10) days
before the public hearing, the department shall:
(A) post notice of the public hearing on the department's
Internet web site;
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the 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, the
part of the project consisting of a tollway, and, consistent
with the assessments reached in the preliminary feasibility
study, the estimated total cost of the acquisition,
construction, installation, equipping, and improving of the
proposed project, as well as the part of the project
consisting of a tollway.
(iv) The address and telephone number of the department.
(v) A statement concerning the availability of the
preliminary feasibility study and the economic impact
study on the department's Internet web site.
(4) At the hearing, the department shall allow the public to be
heard on the proposed project, the preliminary feasibility study,
and the economic impact study.
(5) After the completion of the public hearings described in
subdivision (3), the department shall submit the preliminary
feasibility study and the economic impact study to the budget
committee for its review before the commencement of the
procurement process under this chapter.
(c) The following provisions apply if the department determines
that a feasibility study for the Illiana Expressway that was prepared
before 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 additional
preliminary feasibility study.
(2) The requirement under subsection (b)(1) for a public
hearing before preparation of a preliminary feasibility study
does 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, is
considered to be the preliminary feasibility study for purposes
of 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; public
hearing on preliminary selection and agreement
Sec. 2. (a) This section establishes the competitive proposal
procedure that the department shall use to enter into a public-private
agreement with an operator under this article.
(b) The department may pursue a competitive proposal procedure
using a request for qualifications and a request for proposals process
or proceed directly to a request for proposals.
(c) If the department elects to use a request for qualifications
phase, it must provide a public notice of the request for
qualifications, for the period considered appropriate by the
department, before the date set for receipt of submittals in response
to the solicitation. The department shall provide the notice by posting
in a designated public area and publication in a newspaper of general
circulation, in the manner provided by IC 5-3-1. In addition,
submittals in response to the solicitation may be solicited directly
from potential offerors.
(d) The department shall evaluate qualification submittals based
on the requirements and evaluation criteria set forth in the request for
qualifications.
(e) If the department has undertaken a request for qualifications
phase resulting in one (1) or more prequalified or shortlisted offerors,
the request for proposals shall be limited to those offerors that have
been prequalified or shortlisted.
(f) If the department has not issued a request for qualifications
and intends to use only a one (1) phase request for proposals
procurement, the department must provide a public notice of the
request for proposals for the period considered appropriate by the
department, before the date set for receipt of proposals. The
department shall provide the notice by posting in a designated public
area and publication in a newspaper of general circulation, in the
manner provided by IC 5-3-1. In addition, proposals may be solicited
directly from potential offerors.
(g) The department shall submit a draft of the request for
proposals to the budget committee for its review before the issuance
by 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, and
services sought to be procured;
(2) contain or incorporate by reference the specifications and
contractual terms and conditions applicable to the procurement
and the qualifying project;
(3) specify the factors, criteria, and other information that will
be used in evaluating the proposals;
(4) specify any requirements or goals for use of:
(A) minority business enterprises and women's business
enterprises certified under IC 4-13-16.5;
(B) disadvantaged business enterprises under federal or state
law;
(C) businesses defined under IC 5-22-15-20.5 as Indiana
businesses, to the extent permitted by applicable federal and
state law and regulations; and
(D) businesses that qualify for a small business set-aside
under IC 4-13.6-2-11;
(5) if all or part of the project will consist of a tollway, require
any offeror to submit a proposal based upon that part of the
project that will consist of a tollway, as set forth in the request
for proposals, and permit any offeror to submit one (1) or more
alternative proposals based upon the assumption that a different
part or none of the project will consist of a tollway;
(6) contain or incorporate by reference the other applicable
contractual terms and conditions; and
(7) contain or incorporate by reference any other provisions,
materials, or documents that the department considers
appropriate.
(h) The department shall determine the evaluation criteria that are
appropriate for each project and shall set those criteria forth in the
request for proposals. The department may use a selection process
that results in selection of the proposal offering the best value to the
public, a selection process that results in selection of the proposal
offering the lowest price or cost or the highest payment to, or
revenue sharing with, the department, or any other selection process
that the department determines is in the best interests of the state and
the public.
(i) The department shall evaluate proposals based on the
requirements and evaluation criteria set forth in the request for
proposals.
(j) The department may select one (1) or more offerors for
negotiations based on the evaluation criteria set forth in the request
for proposals. If the department believes that negotiations with the
selected offeror or offerors are not likely to result in a public-private
agreement, or, in the case of a best value selection process, no longer
reflect the best value to the state and the public, the department may
commence negotiations with other responsive offerors, if any, and
may suspend, terminate, or continue negotiations with the original
offeror or offerors. If negotiations are unsuccessful, the department
shall terminate the procurement, may not award the public-private
agreement, and may commence a new procurement for a
public-private agreement. If the department determines that
negotiations with an offeror have been successfully completed, the
department 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, the
department shall schedule a public hearing on the preliminary
selection of the operator and the terms of the proposed public-private
agreement. The hearing shall be conducted in the county seat of the
county that would be an affected jurisdiction for purposes of the
proposed project. The department shall do the following:
(1) At least ten (10) days before the public hearing, post on the
department's Internet web site:
(A) the proposal submitted by the offeror that has been
preliminarily selected as the operator for the project, except
for those parts of the proposal that are confidential under
this 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's
Internet web site; and
(B) publish notice of the hearing one (1) time in accordance
with IC 5-3-1 in two (2) newspapers of general circulation in
the county that would be an affected jurisdiction for
purposes 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 the
agreement 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 this
chapter, and except for those portions that are confidential
under IC 5-14-3, the following are available on the
department's Internet web site and are also available for
public inspection and copying at the principal office of the
department during regular business hours:
(i) The selected offer.
(ii) An explanation of the basis upon which the
preliminary selection was made.
(iii) The proposed public-private agreement for the
project.
(l) At the hearing, the department shall allow the public to be
heard on the preliminary selection of the operator and the terms of
the proposed public-private agreement.
(m) When the terms and conditions of multiple awards are
specified in the request for proposals, awards may be made to more
than 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 been
completed, the department shall make a determination as to whether
the successful offeror should be designated as the operator for the
project and shall submit its decision to the governor and the budget
committee.
(b) After review of the department's determination by the budget
committee, the governor may accept or reject the determination of
the department. If the governor accepts the determination of the
department, the governor shall designate the successful offeror as the
operator for the project. The department shall publish notice of the
designation of the operator one (1) time, in accordance with IC 5-3-1.
(c) After the designation of the successful offeror as the operator
for the project, the department may execute the public-private
agreement.
(d) An action to contest the validity of a public-private agreement
entered into under this chapter may not be brought after the fifteenth
day following the publication of the notice of the designation of the
operator 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 an
unsuccessful offeror that submits a responsive proposal in response
to a request for proposals under this chapter, in exchange for the
work product contained in that proposal. The use by the department
of any design element contained in an unsuccessful proposal is at the
sole risk and discretion of the department and does not confer
liability 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 the
rights 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 work
product contained in the proposal is at the sole risk of the
unsuccessful offeror and does not confer liability on the
department. As added by P.L.47-2006, SEC.40.
IC 8-15.7-4-5 Power to withdraw or modify request, seek revised proposals, or
decline to award a public-private agreement
Sec. 5. In addition to any other rights under this article, in
connection with any procurement under this chapter, the department
may:
(1) withdraw a request for qualifications or a request for
proposals 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 or
request for proposals or seek one (1) or more revised proposals
or one (1) or more best and final offers;
(4) modify the terms, provisions, and conditions of a request for
qualification, request for proposals, technical specifications, or
form of public-private agreement during the pendency of a
procurement; 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 of
proposals during discussions or negotiations with potential offerors.
(b) The department may, in its discretion in accordance with
IC 5-14-3, treat as confidential all records relating to discussions or
negotiations between the department and potential offerors if those
records are created while discussions or negotiations are in progress.
(c) Notwithstanding subsections (a) and (b), and with the
exception of portions that are confidential under IC 5-14-3, the terms
of the selected offer negotiated under this article shall be available
for inspection and copying under IC 5-14-3 after negotiations with
the offerors have been completed.
(d) When disclosing the terms of the selected offer under
subsection (c), the department shall certify that the information being
disclosed accurately and completely represents the terms of the
selected offer.
(e) The department shall disclose the contents of all proposals,
except the parts of the proposals that may be treated as confidential
in accordance with IC 5-14-3, when either:
(1) the request for proposal process is terminated under section
5 of this chapter; or
(2) the public-private agreement has been executed and the
closing for each financing transaction required to provide
funding to carry out the agreement has been conducted. As added by P.L.47-2006, SEC.40.
