IC 8-23-9
Chapter 9. State Highway Contracts; General Powers
IC 8-23-9-1 Opening of sealed bids
Sec. 1. On the date and at the time and place named in the notice,
the commissioner shall receive all sealed proposals submitted and
shall publicly open the bids. The bids may be opened at any other
public place that the commissioner may designate on the day the bids
are to be opened. As added by P.L.18-1990, SEC.218.
IC 8-23-9-2 Rejection of proposals
Sec. 2. The commissioner may reject any and all proposals for
cause. As added by P.L.18-1990, SEC.218.
IC 8-23-9-3 Lowest and best bidder; letting of contract; determination
Sec. 3. Except as provided in sections 4 and 4.5 of this chapter,
the commissioner shall let the contract for the construction,
improvement, or maintenance of the road to the lowest and best
bidder. The determination of the lowest and best bidder must include
any requirement imposed under section 13 of this chapter. The
lowest and best bid may not be for a greater sum than the estimated
cost of the project. As added by P.L.18-1990, SEC.218. Amended by P.L.89-1991,
SEC.1.
IC 8-23-9-4 Acceptance of proposals; criteria
Sec. 4. Notwithstanding any other statute or rule adopted by the
department, the department may accept a proposal and award a
contract for the construction, improvement, or maintenance of a road
if:
(1) the lowest responsive and qualified bid is:
(A) less than one million dollars ($1,000,000);
(B) one (1) of four (4) or more bids received by the
department for the contract; or
(C) not more than fifteen percent (15%) above the estimated
cost of the project;
(2) the commissioner believes that awarding a contract under
this section is in the best interests of the state; and
(3) the award would comply with any requirement imposed
under section 13 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.50-2008,
SEC.2.
IC 8-23-9-4.5 Qualified work release programs; highway right-of-way
maintenance; exception to competitive bid requirements
Sec. 4.5. (a) As used in this section, "qualified work release
program" refers to:
(1) a work release program that is established by the department
of correction under IC 11-10-8 or IC 11-10-10; or
(2) a county work release program under IC 11-12-5.
(b) Notwithstanding IC 8-23-10, but subject to IC 8-23-24.5, the
commissioner may contract with a qualified work release program
for the maintenance of a highway right-of-way without taking
competitive bids. As used in this subsection, "highway right-of-way"
includes only the grass plats. As added by P.L.89-1991, SEC.2. Amended by P.L.182-2009(ss),
SEC.278.
IC 8-23-9-5 Construction and maintenance when no satisfactory proposal
received
Sec. 5. If, in the opinion of the commissioner, no satisfactory
proposal has been received, the commissioner may do the following:
(1) Purchase the necessary material and equipment.
(2) Employ the necessary labor.
(3) Perform the work of constructing, improving, or maintaining
the highway or highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-6 Spending limit when no satisfactory proposal received
Sec. 6. The commissioner may not expend more than eighty-five
percent (85%) of the amount of the lowest and best proposal
submitted for the kind of improvement proposed to be made when
acting under section 5 of this chapter. As added by P.L.18-1990, SEC.218.
IC 8-23-9-7 Adoption of rules governing purchases of material and equipment
Sec. 7. The department shall adopt rules governing the purchase
of material and equipment to the extent that complete competition is
ensured. As added by P.L.18-1990, SEC.218.
IC 8-23-9-8 Bid guarantee and performance bond requirements
Sec. 8. The department:
(1) shall require each bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is more than two
hundred thousand dollars ($200,000); and
(2) may require a bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is not more than
two hundred thousand dollars ($200,000).
Instead of the bond, the department may establish by rule the
requirements that, in its discretion, are necessary to assure payment
of subcontractors, suppliers, and employees by the contractor. As added by P.L.18-1990, SEC.218. Amended by P.L.133-2007,
SEC.11.
IC 8-23-9-9 Bid guarantee and performance bond amounts
Sec. 9. The bid guarantee must be in the penal sum of an amount
equal to five percent (5%) of the bid price. The performance bond
must be in a penal sum set by the commissioner, but may not be less
than an amount equal to the bidder's proposal or the contract price,
where the bidder's proposal is accepted, with good and sufficient
sureties, to the approval of the commissioner, conditioned upon the
faithful performance of the work, in accordance with the profile,
plans, and specifications set forth in the proposal, and conditioned
also upon the payment by the contractor and by all subcontractors for
all labor performed or materials furnished or other services rendered
in the construction of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-10 Performance bonds; deposit; reinsurance; statements of amounts
due
Sec. 10. The bond shall be deposited with and held by the
commissioner for the use of any party interested in the bond. The
commissioner may require the reinsurance of any bond in the
amount, upon the terms, and with the surety approved by the
commissioner. A person, firm, limited liability company, or
corporation to whom any money is due for having performed labor
or furnished material or any other services rendered in the
construction, improvement, or maintenance of the highways shall,
within one (1) year after the acceptance of the labor, material, or
services by the commissioner, furnish the sureties on the bond a
statement of the amount due to any person, firm, limited liability
company, or corporation. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.154.
IC 8-23-9-11 Actions on performance bonds
Sec. 11. Suit may not be brought against the sureties on a bond
until the expiration of sixty (60) days after the furnishing of a
statement under section 10 of this chapter. If the indebtedness is not
paid in full at the expiration of a period of sixty (60) days, the
person, firm, limited liability company, or corporation may bring an
action in the person's, firm's, limited liability company's, or
corporation's own name upon the bond. The action must be
commenced within eighteen (18) months from the date of the final
acceptance of the highway or improvement. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.155.
IC 8-23-9-12 Performance bond form
Sec. 12. The bond provided in this section must be in substantially
the following form:
"KNOW ALL PERSONS BY THESE PRESENTS, THAT
___________________ as principal and ___________________ as
surety, are firmly bound unto the state of Indiana in the penal sum of
an amount equal to ____ percent of the principal's bid or the contract
price, if the proposal is accepted for the payment of which, well and
truly to be made, we bind ourselves, jointly and severally, and our
joint and several heirs, executors, administrators, and assigns, firmly
by these presents, this ____ day of _________, ____.
"THE CONDITIONS OF THE ABOVE OBLIGATIONS ARE
SUCH That, Whereas, the principal is herewith submitting a bid and
proposal for the erection, construction, and completion of
____________________ in accordance with the plans and
specifications approved and adopted by the department, which are
made a part of this bond:
"NOW, THEREFORE, if the department shall award the principal
the contract for work and the principal shall promptly enter into a
contract with the department in the name of the state of Indiana for
the work and shall well and faithfully do and perform the same in all
respects according to the plans and specifications adopted by the
department, and according to the time, terms, and conditions
specified in the contract to be entered into, and in accordance with
all requirements of law, and shall promptly pay all debts incurred by
the principal or any subcontractor in the construction of the work,
including labor, service, and materials furnished, then this obligation
shall be void; otherwise to remain in full force, virtue, and effect.
"IT IS AGREED that no modifications, omissions, or additions in
or to the terms of such contract or in or to the plans or specifications
therefor shall in any wise affect the obligation of such sureties on its
bond.
"IN WITNESS WHEREOF, we hereunto set our hands and seals
this ___ day of _________, 20__.". As added by P.L.18-1990, SEC.218. Amended by P.L.2-2005,
SEC.29.
IC 8-23-9-13 Trust bids
Sec. 13. (a) This section applies whenever a contract is awarded
under this chapter by acceptance of bids, proposals, or quotations.
(b) A bid, proposal, or quotation submitted by a trust (as defined
in IC 30-4-1-1(a)) must identify each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by P.L.18-1990, SEC.218.
IC 8-23-9-14 Partial payments; authorization
Sec. 14. The department may authorize partial payments to any
contractor performing any work under this chapter as the work
progresses under the general rules of the department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-15
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-16 Acceptance of completed work; relief of contractor's liability
Sec. 16. (a) After complete inspection has been made and it is
determined that the work has been done according to plans and
specifications, the commissioner of the department may approve and
accept completed work in sections of not less than one (1) mile
unless otherwise permitted by the contract documents.
(b) When a section of the work has been completed and accepted,
the contractor is as fully relieved of all liability for the maintenance,
reconstruction, or restoration of the section of the work completed
and accepted, or a part of the work, as the contractor would be if the
entire contract were finally completed and accepted.
(c) If the contract consists of two (2) or more projects as defined
by the department, the commissioner may approve and accept the
work of a completed project, and the contractor is relieved of all
liability for maintenance, reconstruction, or restoration of the project,
or a part of the project, as the contractor would be if the entire
contract were finally completed and accepted. As added by P.L.18-1990, SEC.218.
IC 8-23-9-17 Withdrawal and payment of retained percentages
Sec. 17. At any time after the contract has been substantially
completed, the contractor may be permitted to draw any part of the
retained percentage withheld by the department in an amount
determined by the department to be in the best interest of the state,
provided the contractor files a written request on forms provided by
the department for requests. The department may pay to the
contractor any part of the retained percentage the department
determines is in the best interest of the state even though the
contractor does not request payment, provided that the department
notifies the contractor of the department's intent to do so at least
thirty (30) days in advance of the payment. The fact that the
contractor is permitted to withdraw a part of the retained percentage,
or that the department pays a part of the retained percentage, shall in
no way release or relieve the contractor on the contract.
As added by P.L.18-1990, SEC.218. Amended by P.L.117-1995,
SEC.3; P.L.267-2001, SEC.1.
IC 8-23-9-18 Final payments; disputes
Sec. 18. (a) Each contract entered into under this chapter must
provide for final payment within one hundred eighty (180) days after
final acceptance of the contract. However, final payment may not be
made on any amount that is in dispute or the subject of a pending
claim, but final payment may be made on that part of a contract or
those amounts that are not in dispute or the subject of a pending
claim. Partial payment does not constitute a bar, an admission, or
estoppel or have any other effect as to those payments in dispute or
the subject of a pending claim.
(b) For the purpose of this section, a dispute exists when the
contractor makes any claim for increase or decrease to any part of the
contract or seeks additional compensation for any reason. As added by P.L.18-1990, SEC.218.
IC 8-23-9-19
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-20
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-21 Contract form; approval
Sec. 21. Every contract for highway work authorized to be made
under this chapter shall be made in the name of the state, signed by
the commissioner and the contracting parties, and acknowledged
before an officer authorized by law to administer oaths. The contract
shall be submitted to and approved by the attorney general with
regard to legality and form. As added by P.L.18-1990, SEC.218.
IC 8-23-9-22 Hourly wage rates
Sec. 22. A bid submitted for the construction or betterment of a
state highway must contain a statement stipulating the hourly rate for
laborers. The hourly rate may not be lower than the hourly rate paid
for common labor by the department. The hourly rate in the bid
becomes a part of the contract. As added by P.L.18-1990, SEC.218.
IC 8-23-9-23 Residency requirement for unskilled laborers
Sec. 23. It must be a condition of every contract let by the
department for the construction of a state highway or bridge that all
unskilled laborers employed on the work be residents of the county
or counties in which the highway or bridge is being constructed if the
labor is available. The department may designate the class of labor
that is unskilled. However, if this subsection is in violation of a
regulation of a federal authority, the provision may be eliminated
from a contract that is payable in whole or in part with federal funds. As added by P.L.18-1990, SEC.218.
IC 8-23-9-24 Survey monuments; procedure upon removal or burial
Sec. 24. If in the construction or maintenance of a state highway
it is necessary to remove or bury a monument marking or evidencing
an established corner, the department shall cause to be set in the
pavement or right-of-way at the place where the monument was
located a monument capable of activating a metal detection device.
The top of the monument must be level with the pavement or the
grade of the right-of-way. The department shall cause a
memorandum of the monument to be filed in the county surveyor's
office of the county. As added by P.L.18-1990, SEC.218.
IC 8-23-9-25 Nonperformance or abandonment of contracts; completion of
work; costs and expenses
Sec. 25. Any time a contractor:
(1) fails to commence or carry forward;
(2) improperly performs;
(3) has abandoned; or
(4) fails or refuses to complete;
a contract executed under this chapter, the commissioner may relet
the work or may complete the work. The commissioner shall deduct
the cost and expense from any money that may be due the contractor,
and if there is not sufficient money due the contractor to pay for the
work, the commissioner shall require the bondsmen to pay for it. The
attorney general shall prosecute suit in the name of the state for the
collection of the payment under this section. As added by P.L.18-1990, SEC.218.
IC 8-23-9-26 Claims against contractors; filing with department
Sec. 26. A person, firm, limited liability company, or corporation
to whom any money is owed for having performed labor or furnished
material or other service in the construction of a highway or bridge
in the state highway system or in the construction or repair of a
building or other structure for the department, whether the work was
performed for a contractor or subcontractor, may at any time within
sixty (60) days of the performance of the last of the labor or the
furnishing of the last of the material or other service and within thirty
(30) days after the final acceptance of the improvement, file with the
department a duly verified itemized statement of the amount due the
person, firm, limited liability company, or corporation, stating
whether the labor or material was performed for or furnished to a
contractor or subcontractor, giving the name of the contractor or
subcontractor and the dates the labor or material was performed or
furnished, the rate or cost, the character of the labor, material, or
service, and the post office address of the claimant. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.156.
IC 8-23-9-27 Claims against contractors; mailing of copies
Sec. 27. A claim under section 26 of this chapter must be filed in
triplicate, and the department shall send a copy by certified mail to
the contractor and to the surety on the bond of the contractor. The
failure to mail copies to the contractor and surety does not affect the
validity of a claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-28 Claims against contractors; retaining amount of claim
Sec. 28. Upon the receipt of a claim under section 26 of this
chapter, the department shall retain out of the amount due the
contractor the amount of the claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-29 Claims against contractors; allowance or rejection
Sec. 29. Within twenty (20) days of the receipt of a copy under
section 27 of this chapter, the contractor shall either allow or reject
the claim. The contractor shall notify the department in writing of the
allowance or rejection. As added by P.L.18-1990, SEC.218.
IC 8-23-9-30 Claims against contractors; notice of rejection; commencement of
actions
Sec. 30. If a claim is rejected in whole or in part, the department
shall immediately notify the claimant of the action by certified mail.
Within ninety (90) days after receiving notice of a rejection the
claimant must commence an action against the contractor or the
surety on the bond in a court of competent jurisdiction to recover the
amount of the claim. Upon the filing of an action, the claimant shall
procure a certificate from the clerk of the court under the seal of
office that the action has been filed and listing the date of filing and
the parties. The claimant shall promptly forward the certificate to the
department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-31 Claims against contractors; payment of amount adjudged due
Sec. 31. If an action is filed and the department notified under
section 30 of this chapter, the department shall continue to hold the
amount until the final determination of the action. If it is adjudged
that the amount or a part is due to the claimant, the department shall
pay the amount adjudged due to the claimant to the clerk of the court
rendering the judgment. As added by P.L.18-1990, SEC.218.
IC 8-23-9-32 Claims against contractors; failure to file certificate
Sec. 32. If within ninety (90) days after the date of notice of
rejection under section 29 of this chapter a claimant fails to file with
the department a certificate of a clerk, the department shall pay the
amount held on the claim to the contractor if otherwise entitled to
receive the amount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-33 Claims against contractors; additional remedy
Sec. 33. In addition to the remedy given in sections 26 through 31
of this chapter, a person, firm, limited liability company, or
corporation may proceed against a contractor and surety as provided
by section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.157.
IC 8-23-9-34 Claims against contractors; filing of actions
Sec. 34. Whenever a claim has been filed under this chapter with
the department by a person, firm, limited liability company, or
corporation who has performed labor or furnished material or other
service in the construction, repair, or maintenance of a highway or
bridge in the state highway system, or in the construction, repair, or
renovation of a building or structure used by the department, and
against a contractor with the department, the department shall notify
the person, firm, limited liability company, or corporation filing the
claim that within ninety (90) days after the date of the notice the
person, firm, limited liability company, or corporation must proceed
by an action at law in a court of competent jurisdiction against the
contractor or the surety on the contract bond of the contractor for the
collection of the amount of the claim. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.158.
IC 8-23-9-35 Claims against contractors; mailing or publication of notice
Sec. 35. Notice under section 34 of this chapter shall be mailed to
the person, firm, limited liability company, or corporation by
certified mail to the last known address. If the address of the person,
firm, limited liability company, or corporation is unknown, the notice
shall be given by publication once each week for two (2) successive
weeks in two (2) newspapers of general circulation published in the
county or counties where the contract with the department was
performed. In a notice given by publication, the names of all persons,
firms, limited liability companies, or corporations who have filed
claims against the contractor and who have not been notified by mail
may be included. Notice under this section must state that action
must be filed on the claim within ninety (90) days of the date of the
notice. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.159.
IC 8-23-9-36 Claims against contractors; certificates of filing of actions
Sec. 36. Upon the filing of an action under section 34 of this
chapter, the person, firm, limited liability company, or corporation
filing the action shall procure from the clerk of the court where filed
a certificate under the seal of the court that an action has been filed
with the date of filing and the names of the parties. The certificate
shall be within five (5) days after the date of filing the action
forwarded by the person, firm, limited liability company, or
corporation to the department. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.160.
IC 8-23-9-37 Claims against contractors; retention of security for protection of
claimant
Sec. 37. Upon the filing of an action and the receipt of a
certificate under section 36 of this chapter, the department shall hold
the money, security, or other thing held by the department for the
protection of the claim, until the final determination of the action. If
it is adjudged that a part of the claim is due to the person, firm,
limited liability company, or corporation, the department shall pay
to the clerk of the court rendering judgment out of the cash retained
for the claimant the amount retained by the department for the
purpose. If the department retained for the protection of the claimant
a check, bond, or security other than cash, the department shall notify
the claimant of the fact. The claimant shall be subrogated to the
rights of the department in the check, bond, or security other than
cash, to the amount of the judgment, which rights the claimant may
enforce in an appropriate action. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.161.
IC 8-23-9-38 Claims against contractors; failure to file action and certificate
Sec. 38. If a claimant does not file an action under section 36 of
this chapter within the time specified in the notice or fails to file with
the department the certificate of the clerk, the department shall pay
the amount held by the department on the claim to the contractor. If
the claim has been protected by check, bond, or security, the check,
bond, or security shall be delivered to the contractor. If the check,
bond, or security has been deposited for the protection of two (2) or
more claimants, the check, bond, or other security shall be held by
the department for the protection of all claimants until all are either
released, waived, or satisfied. As added by P.L.18-1990, SEC.218.
IC 8-23-9-39 Claims against contractors; additional proceedings
Sec. 39. Sections 34 through 38 of this chapter do not limit or
abridge the right of a person, firm, limited liability company, or
corporation to proceed against a contractor and surety as provided by
section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.162.
IC 8-23-9-40 Railroad crossings; separation of grades
Sec. 40. Whenever a state highway is being constructed or
reconstructed and the highway crosses or intersects a railroad, the
department may, if in its opinion it is practicable, separate grades at
the crossings. If the department is unable to agree with the railroad
as to the separation and the method of accomplishing the separation,
the department shall apply to the utility regulatory commission by
verified petition asking that the grades be separated at the crossing. As added by P.L.18-1990, SEC.218.
IC 8-23-9-41 Railroad crossings; separation of grades; rights, powers, and duties
of parties involved
Sec. 41. Upon the filing of a petition under section 40 of this
chapter, the utility regulatory commission has and shall exercise all
of the powers and authority conferred upon it by IC 8-6-1. A railroad,
interurban street railroad, or suburban street railroad whose tracks
are involved in a crossing has all the rights conferred by and is
subject to all the duties imposed by IC 8-6-1. As added by P.L.18-1990, SEC.218.
IC 8-23-9-42 Railroad crossings; separation of grades; payment of costs
Sec. 42. When any separation of grades is made by agreement or
by order, the department shall pay one-half (1/2) of the total expense
of a separation as a part of the cost of the highway, and the railroad
whose tracks are involved in the separation shall pay the other
one-half (1/2) of the total expense. As added by P.L.18-1990, SEC.218.
IC 8-23-9-43 Railroad crossings; separation of grades; multiple railroads;
payment of costs
Sec. 43. If two (2) or more railroads, interurban street railroads,
or suburban street railroads are located in proximity to each other as
to be involved in a single separation of grades, the utility regulatory
commission shall pay the half of the cost not paid by the department,
apportioned between the railroads, interurban street railroads, or
suburban street railroads in proportion as the cost of the separation
has been enhanced by the presence of the respective railroads,
interurban street railroads, or suburban street railroads. As added by P.L.18-1990, SEC.218.
IC 8-23-9-44 Railroad crossings; separation of grades; maintenance
Sec. 44. After the construction of a separation, the department
shall maintain the highway and the structures supporting it and the
railroad shall maintain its roadway and track and the structures
supporting the same. As added by P.L.18-1990, SEC.218.
IC 8-23-9-45 Railroad crossings; improvement and maintenance
Sec. 45. Where the track or tracks of any steam, electric,
interurban, or street railroad company occupies any part of a highway
that is ordered improved and maintained by the department under this
chapter, the railroad company shall improve and maintain, or pay for
the cost of improving that part of the highway occupied by its tracks,
including the space between the rails, the space between the tracks,
if there is more than one (1) track, and the space eighteen (18) inches
in width on the outside of the rails. In all cases where practicable,
improvement to the full width shall be constructed outside the area
occupied by the tracks, and, where not practicable to do so, the
department may require the tracks to be removed to that part of the
highway outside the area to be so improved. As added by P.L.18-1990, SEC.218.
IC 8-23-9-46 Railroad crossings; width of improvements
Sec. 46. Whenever a highway improvement under section 45 of
this chapter is made so as to embrace within its limits the tracks of
a railroad, interurban, suburban, or street railroad, the improvement
shall be made of sufficient width to give as much room for general
travel on the side or sides and outside of the tracks as is given in
places where there are no tracks within the improvement. As added by P.L.18-1990, SEC.218.
IC 8-23-9-47 Railroad crossings; election by railroad companies to make or pay
for improvements
Sec. 47. A railroad company may elect, by written notice filed
with the department, not less than twenty (20) days before the date
on which the contract for the improvement of a highway is to be let,
to improve the part of the highway occupied by its tracks or to pay
for the improvement done by the department. If the railroad company
elects to improve the part of the highway occupied by its tracks, the
company shall perform the work of improving the part of the
highway with material and in a manner and according to plans and
specifications that the department prescribes and shall commence,
proceed with, and complete the work within a time to be fixed by the
department. If the railroad company fails to do so, the company is
subject to a fine of not to exceed fifty dollars ($50) per day for each
and every day that the improvement is not commenced or completed
after the date named by the department. If the railroad company
elects to pay for the improvement as done by the department, any
sums assessed to cover the cost of the improvement, together with all
the cost in collecting the costs, including attorney's fees, to be fixed
by the court and taxed as costs in the action brought to enforce
payment, shall, from the date of filing a statement of the assessment,
attested by the department, in the office of the county recorder of the
county in which the improvement was made, constitute a lien, to
which only the lien of the state for state, county, township, and
school taxes is paramount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-48 Tearing up and disturbing highways; permit; unauthorized signs
and markers; violations
Sec. 48. (a) A state highway may not be torn up or otherwise
disturbed for any purpose without the written permit of the
commissioner and then only in accordance with the regulations
prescribed by the commissioner. All work shall be done under the
department's supervision, and all the cost of replacing the highway
in as good condition as before the highway was disturbed, shall be
paid by the person to whom or in whose behalf the permit was given.
The department shall mark with proper markers, showing the number
of the highway, all state highways, including the routes of the
highways through cities and towns, together with the caution and
direction signs that the department considers advisable.
(b) It is a Class C infraction for a person to put, place, or maintain
within twenty (20) feet of the right-of-way limits of a state highway,
outside the limits of a city or town a sign or other device containing
the words "stop", "caution", "slow", or any other word or device that
also might be construed as a warning to persons using the highway.
(c) It is a Class C infraction for a person to construct or maintain
a sign or advertising device within one hundred (100) feet of the
right-of-way of such a highway that obstructs the view of the
highway of a person traveling the highway for a distance of five
hundred (500) feet or less from the sign or device as the person
approaches the sign or device. The department may remove unlawful
signs, markers, and devices.
As added by P.L.18-1990, SEC.218.
IC 8-23-9-49 Approaches and drainage structures; construction; private
facilities
Sec. 49. The construction of public road approaches, drainage
structures for the reconstruction of definitely existing private
entrances, and the drainage necessary for the protection of a state
highway shall be included as a part of the improvement of the
highway. Upon the completion of the highway, the owners or
occupants of adjoining lands shall construct and keep in repair all
private approaches or driveways from the highways, but no
approaches or driveways shall be constructed in a manner as to
obstruct or interfere with the highways or with a drain or ditch that
has been constructed as a part of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-50 Use of prison labor in preparation and manufacturing of road
materials
Sec. 50. The department, with the approval of the governor, may
enter into an agreement with the authorities of any of the penal
institutions of the state, county, or city for the use of prison labor in
the preparation and manufacturing of road materials. As added by P.L.18-1990, SEC.218.
IC 8-23-9-51 Drains, culverts, and bridges; bridge construction contracts
Sec. 51. All drains, culverts, and bridges on any state highways
shall be considered as part of the state highway. All bridges having
a span over twenty (20) feet in length may be let as a separate
contract, the procedure to be the same as in the letting of contracts
for state highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-52 Contracts specifying borrow or clearing and grubbing; standards
Sec. 52. (a) A department contract that specifies borrow or
clearing and grubbing must require the contractor to conform to the
department's manual of standard specifications and must include
standards for the following:
(1) Borrow pit back-slopes.
(2) Control of drainage water.
(3) Degree of restoration.
(b) Restoration of borrow areas and disposal areas must meet or
exceed the standards for seeding and sodding of roadside areas.
(c) Final cleanup provisions of the contract apply to the removal
and disposal of perishable materials and debris from the highway
right-of-way to an off-road site. As added by P.L.18-1990, SEC.218. IC 8-23-9-53 Trench safety systems; costs
Sec. 53. (a) This section applies to a construction, an
improvement, or a maintenance project that requires creation of a
trench of at least five (5) feet in depth.
(b) OSHA regulations, 29 C.F.R. 1926, Subpart P, for trench
safety systems shall be incorporated into the contract documents for
a public works project.
(c) The contract documents for a public works project must
provide that the cost for trench safety systems shall be paid for:
(1) as a separate pay item; or
(2) in the pay item of the principal work with which the safety
systems are associated. As added by P.L.18-1990, SEC.218.
IC 8-23-9-54 State highway fund; creation and management
Sec. 54. (a) To provide funds for carrying out the provisions of
this chapter, there is created a state highway fund from the following
sources:
(1) All money in the general fund to the credit of the state
highway account.
(2) All money that is received from the Department of
Transportation or other federal agency and known as federal
aid.
(3) All money paid into the state treasury to reimburse the state
for money paid out of the state highway fund.
(4) All money provided by Indiana law for the construction,
maintenance, reconstruction, repair, and control of public
highways, as provided under this chapter.
(5) All money that on May 22, 1933, was to be paid into the
state highway fund under contemplation of any statute in force
as of May 22, 1933.
(6) All money that may at any time be appropriated from the
state treasury.
(7) Any part of the state highway fund unexpended at the
expiration of any fiscal year, which shall remain in the fund and
be available for the succeeding years.
(8) Any money credited to the state highway fund from the
motor vehicle highway account under IC 8-14-1-3(4).
(9) Any money credited to the state highway fund from the
highway road and street fund under IC 8-14-2-3.
(10) Any money credited to the state highway fund under
IC 6-6-1.1-801.5, IC 6-6-4.1-5, or IC 8-16-1-17.1.
(11) Any money distributed to the state highway fund under
IC 8-14-14, IC 8-15.5, or IC 8-15.7.
(b) All expenses incurred in carrying out this chapter shall be paid
out of the state highway fund. As added by P.L.18-1990, SEC.218. Amended by P.L.192-2002(ss),
SEC.150; P.L.47-2006, SEC.43. IC 8-23-9-55 Use of state highway fund
Sec. 55. Money in the state highway fund shall be used for the
following:
(1) Operation of the department.
(2) Construction, reconstruction, operation, maintenance, and
control of the state highways that are the responsibility of the
department and of tollways that are the responsibility of the
department under IC 8-15-3. As added by P.L.18-1990, SEC.218.
IC 8-23-9-56 Research assistance to Purdue University
Sec. 56. (a) The department may cooperate with and assist Purdue
University in developing the best methods of improving and
maintaining the highways of the state and the respective counties. In
so cooperating with Purdue University and for the purpose of
developing and disseminating helpful information concerning road
construction and improvement and the operation of the highways of
the state and the counties, the department may expend money
annually from the funds appropriated to the department's use for the
use and benefit of Purdue University in carrying on programs of
highway research and highway extension at or in connection with
Purdue University and for the annual road school held at Purdue
University. In addition, the money may be increased by federal
funds, which may be made available to the department for the
engineering and economic investigation of projects for future
construction and for highway research necessary in connection
therewith.
(b) For the purpose of disseminating knowledge of the highway
maintenance methods that are best suited to the various sections of
Indiana, the county and state highway officials, in cooperation with
Purdue University, may hold joint road meetings in the various
sections of Indiana.
(c) The aid authorized by this section shall be paid quarterly by
the department to Purdue University upon proper voucher. As added by P.L.18-1990, SEC.218.
IC 8-23-9-57 Cooperation with federal and other states' officials
Sec. 57. The department may cooperate with the governing
officials of state highway agencies and systems in one (1) or more
other states or the Federal Highway Administration in research in
conducting tests and experiments designed to develop the best
methods of constructing, improving, and maintaining the highways
in Indiana. In so cooperating with the governing officials of state
highway agencies and systems in one (1) or more other states or the
Federal Highway Administration and for the purpose of paying the
proportionate share of this state of the cost of the tests and
experiments, the department may expend the funds appropriated to
its use. As added by P.L.18-1990, SEC.218.
IC 8-23-9-58 Utility facilities; costs and delays due to facility relocations;
contractor's right to compensation or expenses
Sec. 58. (a) This section applies to a construction contract entered
into by the department and a contractor after June 30, 2005.
(b) The department may not include in a contract, or in any
specifications or other documents that are a part of or incorporated
in a contract, a provision that prohibits a contractor from receiving,
or restricts the contractor in receiving, reasonable compensation or
reasonable expenses directly related to unforeseen conditions
encountered during the construction project as a result of:
(1) a conflict with the facilities of a utility (as defined in
IC 8-1-9-2(a)); or
(2) delays due to the relocation of utility facilities;
that differ materially from the affected utilities or utility relocations
specified in the contract documents. As added by P.L.35-2005, SEC.3.
IC 8-23-9
Chapter 9. State Highway Contracts; General Powers
IC 8-23-9-1 Opening of sealed bids
Sec. 1. On the date and at the time and place named in the notice,
the commissioner shall receive all sealed proposals submitted and
shall publicly open the bids. The bids may be opened at any other
public place that the commissioner may designate on the day the bids
are to be opened. As added by P.L.18-1990, SEC.218.
IC 8-23-9-2 Rejection of proposals
Sec. 2. The commissioner may reject any and all proposals for
cause. As added by P.L.18-1990, SEC.218.
IC 8-23-9-3 Lowest and best bidder; letting of contract; determination
Sec. 3. Except as provided in sections 4 and 4.5 of this chapter,
the commissioner shall let the contract for the construction,
improvement, or maintenance of the road to the lowest and best
bidder. The determination of the lowest and best bidder must include
any requirement imposed under section 13 of this chapter. The
lowest and best bid may not be for a greater sum than the estimated
cost of the project. As added by P.L.18-1990, SEC.218. Amended by P.L.89-1991,
SEC.1.
IC 8-23-9-4 Acceptance of proposals; criteria
Sec. 4. Notwithstanding any other statute or rule adopted by the
department, the department may accept a proposal and award a
contract for the construction, improvement, or maintenance of a road
if:
(1) the lowest responsive and qualified bid is:
(A) less than one million dollars ($1,000,000);
(B) one (1) of four (4) or more bids received by the
department for the contract; or
(C) not more than fifteen percent (15%) above the estimated
cost of the project;
(2) the commissioner believes that awarding a contract under
this section is in the best interests of the state; and
(3) the award would comply with any requirement imposed
under section 13 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.50-2008,
SEC.2.
IC 8-23-9-4.5 Qualified work release programs; highway right-of-way
maintenance; exception to competitive bid requirements
Sec. 4.5. (a) As used in this section, "qualified work release
program" refers to:
(1) a work release program that is established by the department
of correction under IC 11-10-8 or IC 11-10-10; or
(2) a county work release program under IC 11-12-5.
(b) Notwithstanding IC 8-23-10, but subject to IC 8-23-24.5, the
commissioner may contract with a qualified work release program
for the maintenance of a highway right-of-way without taking
competitive bids. As used in this subsection, "highway right-of-way"
includes only the grass plats. As added by P.L.89-1991, SEC.2. Amended by P.L.182-2009(ss),
SEC.278.
IC 8-23-9-5 Construction and maintenance when no satisfactory proposal
received
Sec. 5. If, in the opinion of the commissioner, no satisfactory
proposal has been received, the commissioner may do the following:
(1) Purchase the necessary material and equipment.
(2) Employ the necessary labor.
(3) Perform the work of constructing, improving, or maintaining
the highway or highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-6 Spending limit when no satisfactory proposal received
Sec. 6. The commissioner may not expend more than eighty-five
percent (85%) of the amount of the lowest and best proposal
submitted for the kind of improvement proposed to be made when
acting under section 5 of this chapter. As added by P.L.18-1990, SEC.218.
IC 8-23-9-7 Adoption of rules governing purchases of material and equipment
Sec. 7. The department shall adopt rules governing the purchase
of material and equipment to the extent that complete competition is
ensured. As added by P.L.18-1990, SEC.218.
IC 8-23-9-8 Bid guarantee and performance bond requirements
Sec. 8. The department:
(1) shall require each bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is more than two
hundred thousand dollars ($200,000); and
(2) may require a bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is not more than
two hundred thousand dollars ($200,000).
Instead of the bond, the department may establish by rule the
requirements that, in its discretion, are necessary to assure payment
of subcontractors, suppliers, and employees by the contractor. As added by P.L.18-1990, SEC.218. Amended by P.L.133-2007,
SEC.11.
IC 8-23-9-9 Bid guarantee and performance bond amounts
Sec. 9. The bid guarantee must be in the penal sum of an amount
equal to five percent (5%) of the bid price. The performance bond
must be in a penal sum set by the commissioner, but may not be less
than an amount equal to the bidder's proposal or the contract price,
where the bidder's proposal is accepted, with good and sufficient
sureties, to the approval of the commissioner, conditioned upon the
faithful performance of the work, in accordance with the profile,
plans, and specifications set forth in the proposal, and conditioned
also upon the payment by the contractor and by all subcontractors for
all labor performed or materials furnished or other services rendered
in the construction of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-10 Performance bonds; deposit; reinsurance; statements of amounts
due
Sec. 10. The bond shall be deposited with and held by the
commissioner for the use of any party interested in the bond. The
commissioner may require the reinsurance of any bond in the
amount, upon the terms, and with the surety approved by the
commissioner. A person, firm, limited liability company, or
corporation to whom any money is due for having performed labor
or furnished material or any other services rendered in the
construction, improvement, or maintenance of the highways shall,
within one (1) year after the acceptance of the labor, material, or
services by the commissioner, furnish the sureties on the bond a
statement of the amount due to any person, firm, limited liability
company, or corporation. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.154.
IC 8-23-9-11 Actions on performance bonds
Sec. 11. Suit may not be brought against the sureties on a bond
until the expiration of sixty (60) days after the furnishing of a
statement under section 10 of this chapter. If the indebtedness is not
paid in full at the expiration of a period of sixty (60) days, the
person, firm, limited liability company, or corporation may bring an
action in the person's, firm's, limited liability company's, or
corporation's own name upon the bond. The action must be
commenced within eighteen (18) months from the date of the final
acceptance of the highway or improvement. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.155.
IC 8-23-9-12 Performance bond form
Sec. 12. The bond provided in this section must be in substantially
the following form:
"KNOW ALL PERSONS BY THESE PRESENTS, THAT
___________________ as principal and ___________________ as
surety, are firmly bound unto the state of Indiana in the penal sum of
an amount equal to ____ percent of the principal's bid or the contract
price, if the proposal is accepted for the payment of which, well and
truly to be made, we bind ourselves, jointly and severally, and our
joint and several heirs, executors, administrators, and assigns, firmly
by these presents, this ____ day of _________, ____.
"THE CONDITIONS OF THE ABOVE OBLIGATIONS ARE
SUCH That, Whereas, the principal is herewith submitting a bid and
proposal for the erection, construction, and completion of
____________________ in accordance with the plans and
specifications approved and adopted by the department, which are
made a part of this bond:
"NOW, THEREFORE, if the department shall award the principal
the contract for work and the principal shall promptly enter into a
contract with the department in the name of the state of Indiana for
the work and shall well and faithfully do and perform the same in all
respects according to the plans and specifications adopted by the
department, and according to the time, terms, and conditions
specified in the contract to be entered into, and in accordance with
all requirements of law, and shall promptly pay all debts incurred by
the principal or any subcontractor in the construction of the work,
including labor, service, and materials furnished, then this obligation
shall be void; otherwise to remain in full force, virtue, and effect.
"IT IS AGREED that no modifications, omissions, or additions in
or to the terms of such contract or in or to the plans or specifications
therefor shall in any wise affect the obligation of such sureties on its
bond.
"IN WITNESS WHEREOF, we hereunto set our hands and seals
this ___ day of _________, 20__.". As added by P.L.18-1990, SEC.218. Amended by P.L.2-2005,
SEC.29.
IC 8-23-9-13 Trust bids
Sec. 13. (a) This section applies whenever a contract is awarded
under this chapter by acceptance of bids, proposals, or quotations.
(b) A bid, proposal, or quotation submitted by a trust (as defined
in IC 30-4-1-1(a)) must identify each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by P.L.18-1990, SEC.218.
IC 8-23-9-14 Partial payments; authorization
Sec. 14. The department may authorize partial payments to any
contractor performing any work under this chapter as the work
progresses under the general rules of the department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-15
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-16 Acceptance of completed work; relief of contractor's liability
Sec. 16. (a) After complete inspection has been made and it is
determined that the work has been done according to plans and
specifications, the commissioner of the department may approve and
accept completed work in sections of not less than one (1) mile
unless otherwise permitted by the contract documents.
(b) When a section of the work has been completed and accepted,
the contractor is as fully relieved of all liability for the maintenance,
reconstruction, or restoration of the section of the work completed
and accepted, or a part of the work, as the contractor would be if the
entire contract were finally completed and accepted.
(c) If the contract consists of two (2) or more projects as defined
by the department, the commissioner may approve and accept the
work of a completed project, and the contractor is relieved of all
liability for maintenance, reconstruction, or restoration of the project,
or a part of the project, as the contractor would be if the entire
contract were finally completed and accepted. As added by P.L.18-1990, SEC.218.
IC 8-23-9-17 Withdrawal and payment of retained percentages
Sec. 17. At any time after the contract has been substantially
completed, the contractor may be permitted to draw any part of the
retained percentage withheld by the department in an amount
determined by the department to be in the best interest of the state,
provided the contractor files a written request on forms provided by
the department for requests. The department may pay to the
contractor any part of the retained percentage the department
determines is in the best interest of the state even though the
contractor does not request payment, provided that the department
notifies the contractor of the department's intent to do so at least
thirty (30) days in advance of the payment. The fact that the
contractor is permitted to withdraw a part of the retained percentage,
or that the department pays a part of the retained percentage, shall in
no way release or relieve the contractor on the contract.
As added by P.L.18-1990, SEC.218. Amended by P.L.117-1995,
SEC.3; P.L.267-2001, SEC.1.
IC 8-23-9-18 Final payments; disputes
Sec. 18. (a) Each contract entered into under this chapter must
provide for final payment within one hundred eighty (180) days after
final acceptance of the contract. However, final payment may not be
made on any amount that is in dispute or the subject of a pending
claim, but final payment may be made on that part of a contract or
those amounts that are not in dispute or the subject of a pending
claim. Partial payment does not constitute a bar, an admission, or
estoppel or have any other effect as to those payments in dispute or
the subject of a pending claim.
(b) For the purpose of this section, a dispute exists when the
contractor makes any claim for increase or decrease to any part of the
contract or seeks additional compensation for any reason. As added by P.L.18-1990, SEC.218.
IC 8-23-9-19
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-20
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-21 Contract form; approval
Sec. 21. Every contract for highway work authorized to be made
under this chapter shall be made in the name of the state, signed by
the commissioner and the contracting parties, and acknowledged
before an officer authorized by law to administer oaths. The contract
shall be submitted to and approved by the attorney general with
regard to legality and form. As added by P.L.18-1990, SEC.218.
IC 8-23-9-22 Hourly wage rates
Sec. 22. A bid submitted for the construction or betterment of a
state highway must contain a statement stipulating the hourly rate for
laborers. The hourly rate may not be lower than the hourly rate paid
for common labor by the department. The hourly rate in the bid
becomes a part of the contract. As added by P.L.18-1990, SEC.218.
IC 8-23-9-23 Residency requirement for unskilled laborers
Sec. 23. It must be a condition of every contract let by the
department for the construction of a state highway or bridge that all
unskilled laborers employed on the work be residents of the county
or counties in which the highway or bridge is being constructed if the
labor is available. The department may designate the class of labor
that is unskilled. However, if this subsection is in violation of a
regulation of a federal authority, the provision may be eliminated
from a contract that is payable in whole or in part with federal funds. As added by P.L.18-1990, SEC.218.
IC 8-23-9-24 Survey monuments; procedure upon removal or burial
Sec. 24. If in the construction or maintenance of a state highway
it is necessary to remove or bury a monument marking or evidencing
an established corner, the department shall cause to be set in the
pavement or right-of-way at the place where the monument was
located a monument capable of activating a metal detection device.
The top of the monument must be level with the pavement or the
grade of the right-of-way. The department shall cause a
memorandum of the monument to be filed in the county surveyor's
office of the county. As added by P.L.18-1990, SEC.218.
IC 8-23-9-25 Nonperformance or abandonment of contracts; completion of
work; costs and expenses
Sec. 25. Any time a contractor:
(1) fails to commence or carry forward;
(2) improperly performs;
(3) has abandoned; or
(4) fails or refuses to complete;
a contract executed under this chapter, the commissioner may relet
the work or may complete the work. The commissioner shall deduct
the cost and expense from any money that may be due the contractor,
and if there is not sufficient money due the contractor to pay for the
work, the commissioner shall require the bondsmen to pay for it. The
attorney general shall prosecute suit in the name of the state for the
collection of the payment under this section. As added by P.L.18-1990, SEC.218.
IC 8-23-9-26 Claims against contractors; filing with department
Sec. 26. A person, firm, limited liability company, or corporation
to whom any money is owed for having performed labor or furnished
material or other service in the construction of a highway or bridge
in the state highway system or in the construction or repair of a
building or other structure for the department, whether the work was
performed for a contractor or subcontractor, may at any time within
sixty (60) days of the performance of the last of the labor or the
furnishing of the last of the material or other service and within thirty
(30) days after the final acceptance of the improvement, file with the
department a duly verified itemized statement of the amount due the
person, firm, limited liability company, or corporation, stating
whether the labor or material was performed for or furnished to a
contractor or subcontractor, giving the name of the contractor or
subcontractor and the dates the labor or material was performed or
furnished, the rate or cost, the character of the labor, material, or
service, and the post office address of the claimant. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.156.
IC 8-23-9-27 Claims against contractors; mailing of copies
Sec. 27. A claim under section 26 of this chapter must be filed in
triplicate, and the department shall send a copy by certified mail to
the contractor and to the surety on the bond of the contractor. The
failure to mail copies to the contractor and surety does not affect the
validity of a claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-28 Claims against contractors; retaining amount of claim
Sec. 28. Upon the receipt of a claim under section 26 of this
chapter, the department shall retain out of the amount due the
contractor the amount of the claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-29 Claims against contractors; allowance or rejection
Sec. 29. Within twenty (20) days of the receipt of a copy under
section 27 of this chapter, the contractor shall either allow or reject
the claim. The contractor shall notify the department in writing of the
allowance or rejection. As added by P.L.18-1990, SEC.218.
IC 8-23-9-30 Claims against contractors; notice of rejection; commencement of
actions
Sec. 30. If a claim is rejected in whole or in part, the department
shall immediately notify the claimant of the action by certified mail.
Within ninety (90) days after receiving notice of a rejection the
claimant must commence an action against the contractor or the
surety on the bond in a court of competent jurisdiction to recover the
amount of the claim. Upon the filing of an action, the claimant shall
procure a certificate from the clerk of the court under the seal of
office that the action has been filed and listing the date of filing and
the parties. The claimant shall promptly forward the certificate to the
department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-31 Claims against contractors; payment of amount adjudged due
Sec. 31. If an action is filed and the department notified under
section 30 of this chapter, the department shall continue to hold the
amount until the final determination of the action. If it is adjudged
that the amount or a part is due to the claimant, the department shall
pay the amount adjudged due to the claimant to the clerk of the court
rendering the judgment. As added by P.L.18-1990, SEC.218.
IC 8-23-9-32 Claims against contractors; failure to file certificate
Sec. 32. If within ninety (90) days after the date of notice of
rejection under section 29 of this chapter a claimant fails to file with
the department a certificate of a clerk, the department shall pay the
amount held on the claim to the contractor if otherwise entitled to
receive the amount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-33 Claims against contractors; additional remedy
Sec. 33. In addition to the remedy given in sections 26 through 31
of this chapter, a person, firm, limited liability company, or
corporation may proceed against a contractor and surety as provided
by section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.157.
IC 8-23-9-34 Claims against contractors; filing of actions
Sec. 34. Whenever a claim has been filed under this chapter with
the department by a person, firm, limited liability company, or
corporation who has performed labor or furnished material or other
service in the construction, repair, or maintenance of a highway or
bridge in the state highway system, or in the construction, repair, or
renovation of a building or structure used by the department, and
against a contractor with the department, the department shall notify
the person, firm, limited liability company, or corporation filing the
claim that within ninety (90) days after the date of the notice the
person, firm, limited liability company, or corporation must proceed
by an action at law in a court of competent jurisdiction against the
contractor or the surety on the contract bond of the contractor for the
collection of the amount of the claim. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.158.
IC 8-23-9-35 Claims against contractors; mailing or publication of notice
Sec. 35. Notice under section 34 of this chapter shall be mailed to
the person, firm, limited liability company, or corporation by
certified mail to the last known address. If the address of the person,
firm, limited liability company, or corporation is unknown, the notice
shall be given by publication once each week for two (2) successive
weeks in two (2) newspapers of general circulation published in the
county or counties where the contract with the department was
performed. In a notice given by publication, the names of all persons,
firms, limited liability companies, or corporations who have filed
claims against the contractor and who have not been notified by mail
may be included. Notice under this section must state that action
must be filed on the claim within ninety (90) days of the date of the
notice. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.159.
IC 8-23-9-36 Claims against contractors; certificates of filing of actions
Sec. 36. Upon the filing of an action under section 34 of this
chapter, the person, firm, limited liability company, or corporation
filing the action shall procure from the clerk of the court where filed
a certificate under the seal of the court that an action has been filed
with the date of filing and the names of the parties. The certificate
shall be within five (5) days after the date of filing the action
forwarded by the person, firm, limited liability company, or
corporation to the department. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.160.
IC 8-23-9-37 Claims against contractors; retention of security for protection of
claimant
Sec. 37. Upon the filing of an action and the receipt of a
certificate under section 36 of this chapter, the department shall hold
the money, security, or other thing held by the department for the
protection of the claim, until the final determination of the action. If
it is adjudged that a part of the claim is due to the person, firm,
limited liability company, or corporation, the department shall pay
to the clerk of the court rendering judgment out of the cash retained
for the claimant the amount retained by the department for the
purpose. If the department retained for the protection of the claimant
a check, bond, or security other than cash, the department shall notify
the claimant of the fact. The claimant shall be subrogated to the
rights of the department in the check, bond, or security other than
cash, to the amount of the judgment, which rights the claimant may
enforce in an appropriate action. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.161.
IC 8-23-9-38 Claims against contractors; failure to file action and certificate
Sec. 38. If a claimant does not file an action under section 36 of
this chapter within the time specified in the notice or fails to file with
the department the certificate of the clerk, the department shall pay
the amount held by the department on the claim to the contractor. If
the claim has been protected by check, bond, or security, the check,
bond, or security shall be delivered to the contractor. If the check,
bond, or security has been deposited for the protection of two (2) or
more claimants, the check, bond, or other security shall be held by
the department for the protection of all claimants until all are either
released, waived, or satisfied. As added by P.L.18-1990, SEC.218.
IC 8-23-9-39 Claims against contractors; additional proceedings
Sec. 39. Sections 34 through 38 of this chapter do not limit or
abridge the right of a person, firm, limited liability company, or
corporation to proceed against a contractor and surety as provided by
section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.162.
IC 8-23-9-40 Railroad crossings; separation of grades
Sec. 40. Whenever a state highway is being constructed or
reconstructed and the highway crosses or intersects a railroad, the
department may, if in its opinion it is practicable, separate grades at
the crossings. If the department is unable to agree with the railroad
as to the separation and the method of accomplishing the separation,
the department shall apply to the utility regulatory commission by
verified petition asking that the grades be separated at the crossing. As added by P.L.18-1990, SEC.218.
IC 8-23-9-41 Railroad crossings; separation of grades; rights, powers, and duties
of parties involved
Sec. 41. Upon the filing of a petition under section 40 of this
chapter, the utility regulatory commission has and shall exercise all
of the powers and authority conferred upon it by IC 8-6-1. A railroad,
interurban street railroad, or suburban street railroad whose tracks
are involved in a crossing has all the rights conferred by and is
subject to all the duties imposed by IC 8-6-1. As added by P.L.18-1990, SEC.218.
IC 8-23-9-42 Railroad crossings; separation of grades; payment of costs
Sec. 42. When any separation of grades is made by agreement or
by order, the department shall pay one-half (1/2) of the total expense
of a separation as a part of the cost of the highway, and the railroad
whose tracks are involved in the separation shall pay the other
one-half (1/2) of the total expense. As added by P.L.18-1990, SEC.218.
IC 8-23-9-43 Railroad crossings; separation of grades; multiple railroads;
payment of costs
Sec. 43. If two (2) or more railroads, interurban street railroads,
or suburban street railroads are located in proximity to each other as
to be involved in a single separation of grades, the utility regulatory
commission shall pay the half of the cost not paid by the department,
apportioned between the railroads, interurban street railroads, or
suburban street railroads in proportion as the cost of the separation
has been enhanced by the presence of the respective railroads,
interurban street railroads, or suburban street railroads. As added by P.L.18-1990, SEC.218.
IC 8-23-9-44 Railroad crossings; separation of grades; maintenance
Sec. 44. After the construction of a separation, the department
shall maintain the highway and the structures supporting it and the
railroad shall maintain its roadway and track and the structures
supporting the same. As added by P.L.18-1990, SEC.218.
IC 8-23-9-45 Railroad crossings; improvement and maintenance
Sec. 45. Where the track or tracks of any steam, electric,
interurban, or street railroad company occupies any part of a highway
that is ordered improved and maintained by the department under this
chapter, the railroad company shall improve and maintain, or pay for
the cost of improving that part of the highway occupied by its tracks,
including the space between the rails, the space between the tracks,
if there is more than one (1) track, and the space eighteen (18) inches
in width on the outside of the rails. In all cases where practicable,
improvement to the full width shall be constructed outside the area
occupied by the tracks, and, where not practicable to do so, the
department may require the tracks to be removed to that part of the
highway outside the area to be so improved. As added by P.L.18-1990, SEC.218.
IC 8-23-9-46 Railroad crossings; width of improvements
Sec. 46. Whenever a highway improvement under section 45 of
this chapter is made so as to embrace within its limits the tracks of
a railroad, interurban, suburban, or street railroad, the improvement
shall be made of sufficient width to give as much room for general
travel on the side or sides and outside of the tracks as is given in
places where there are no tracks within the improvement. As added by P.L.18-1990, SEC.218.
IC 8-23-9-47 Railroad crossings; election by railroad companies to make or pay
for improvements
Sec. 47. A railroad company may elect, by written notice filed
with the department, not less than twenty (20) days before the date
on which the contract for the improvement of a highway is to be let,
to improve the part of the highway occupied by its tracks or to pay
for the improvement done by the department. If the railroad company
elects to improve the part of the highway occupied by its tracks, the
company shall perform the work of improving the part of the
highway with material and in a manner and according to plans and
specifications that the department prescribes and shall commence,
proceed with, and complete the work within a time to be fixed by the
department. If the railroad company fails to do so, the company is
subject to a fine of not to exceed fifty dollars ($50) per day for each
and every day that the improvement is not commenced or completed
after the date named by the department. If the railroad company
elects to pay for the improvement as done by the department, any
sums assessed to cover the cost of the improvement, together with all
the cost in collecting the costs, including attorney's fees, to be fixed
by the court and taxed as costs in the action brought to enforce
payment, shall, from the date of filing a statement of the assessment,
attested by the department, in the office of the county recorder of the
county in which the improvement was made, constitute a lien, to
which only the lien of the state for state, county, township, and
school taxes is paramount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-48 Tearing up and disturbing highways; permit; unauthorized signs
and markers; violations
Sec. 48. (a) A state highway may not be torn up or otherwise
disturbed for any purpose without the written permit of the
commissioner and then only in accordance with the regulations
prescribed by the commissioner. All work shall be done under the
department's supervision, and all the cost of replacing the highway
in as good condition as before the highway was disturbed, shall be
paid by the person to whom or in whose behalf the permit was given.
The department shall mark with proper markers, showing the number
of the highway, all state highways, including the routes of the
highways through cities and towns, together with the caution and
direction signs that the department considers advisable.
(b) It is a Class C infraction for a person to put, place, or maintain
within twenty (20) feet of the right-of-way limits of a state highway,
outside the limits of a city or town a sign or other device containing
the words "stop", "caution", "slow", or any other word or device that
also might be construed as a warning to persons using the highway.
(c) It is a Class C infraction for a person to construct or maintain
a sign or advertising device within one hundred (100) feet of the
right-of-way of such a highway that obstructs the view of the
highway of a person traveling the highway for a distance of five
hundred (500) feet or less from the sign or device as the person
approaches the sign or device. The department may remove unlawful
signs, markers, and devices.
As added by P.L.18-1990, SEC.218.
IC 8-23-9-49 Approaches and drainage structures; construction; private
facilities
Sec. 49. The construction of public road approaches, drainage
structures for the reconstruction of definitely existing private
entrances, and the drainage necessary for the protection of a state
highway shall be included as a part of the improvement of the
highway. Upon the completion of the highway, the owners or
occupants of adjoining lands shall construct and keep in repair all
private approaches or driveways from the highways, but no
approaches or driveways shall be constructed in a manner as to
obstruct or interfere with the highways or with a drain or ditch that
has been constructed as a part of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-50 Use of prison labor in preparation and manufacturing of road
materials
Sec. 50. The department, with the approval of the governor, may
enter into an agreement with the authorities of any of the penal
institutions of the state, county, or city for the use of prison labor in
the preparation and manufacturing of road materials. As added by P.L.18-1990, SEC.218.
IC 8-23-9-51 Drains, culverts, and bridges; bridge construction contracts
Sec. 51. All drains, culverts, and bridges on any state highways
shall be considered as part of the state highway. All bridges having
a span over twenty (20) feet in length may be let as a separate
contract, the procedure to be the same as in the letting of contracts
for state highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-52 Contracts specifying borrow or clearing and grubbing; standards
Sec. 52. (a) A department contract that specifies borrow or
clearing and grubbing must require the contractor to conform to the
department's manual of standard specifications and must include
standards for the following:
(1) Borrow pit back-slopes.
(2) Control of drainage water.
(3) Degree of restoration.
(b) Restoration of borrow areas and disposal areas must meet or
exceed the standards for seeding and sodding of roadside areas.
(c) Final cleanup provisions of the contract apply to the removal
and disposal of perishable materials and debris from the highway
right-of-way to an off-road site. As added by P.L.18-1990, SEC.218. IC 8-23-9-53 Trench safety systems; costs
Sec. 53. (a) This section applies to a construction, an
improvement, or a maintenance project that requires creation of a
trench of at least five (5) feet in depth.
(b) OSHA regulations, 29 C.F.R. 1926, Subpart P, for trench
safety systems shall be incorporated into the contract documents for
a public works project.
(c) The contract documents for a public works project must
provide that the cost for trench safety systems shall be paid for:
(1) as a separate pay item; or
(2) in the pay item of the principal work with which the safety
systems are associated. As added by P.L.18-1990, SEC.218.
IC 8-23-9-54 State highway fund; creation and management
Sec. 54. (a) To provide funds for carrying out the provisions of
this chapter, there is created a state highway fund from the following
sources:
(1) All money in the general fund to the credit of the state
highway account.
(2) All money that is received from the Department of
Transportation or other federal agency and known as federal
aid.
(3) All money paid into the state treasury to reimburse the state
for money paid out of the state highway fund.
(4) All money provided by Indiana law for the construction,
maintenance, reconstruction, repair, and control of public
highways, as provided under this chapter.
(5) All money that on May 22, 1933, was to be paid into the
state highway fund under contemplation of any statute in force
as of May 22, 1933.
(6) All money that may at any time be appropriated from the
state treasury.
(7) Any part of the state highway fund unexpended at the
expiration of any fiscal year, which shall remain in the fund and
be available for the succeeding years.
(8) Any money credited to the state highway fund from the
motor vehicle highway account under IC 8-14-1-3(4).
(9) Any money credited to the state highway fund from the
highway road and street fund under IC 8-14-2-3.
(10) Any money credited to the state highway fund under
IC 6-6-1.1-801.5, IC 6-6-4.1-5, or IC 8-16-1-17.1.
(11) Any money distributed to the state highway fund under
IC 8-14-14, IC 8-15.5, or IC 8-15.7.
(b) All expenses incurred in carrying out this chapter shall be paid
out of the state highway fund. As added by P.L.18-1990, SEC.218. Amended by P.L.192-2002(ss),
SEC.150; P.L.47-2006, SEC.43. IC 8-23-9-55 Use of state highway fund
Sec. 55. Money in the state highway fund shall be used for the
following:
(1) Operation of the department.
(2) Construction, reconstruction, operation, maintenance, and
control of the state highways that are the responsibility of the
department and of tollways that are the responsibility of the
department under IC 8-15-3. As added by P.L.18-1990, SEC.218.
IC 8-23-9-56 Research assistance to Purdue University
Sec. 56. (a) The department may cooperate with and assist Purdue
University in developing the best methods of improving and
maintaining the highways of the state and the respective counties. In
so cooperating with Purdue University and for the purpose of
developing and disseminating helpful information concerning road
construction and improvement and the operation of the highways of
the state and the counties, the department may expend money
annually from the funds appropriated to the department's use for the
use and benefit of Purdue University in carrying on programs of
highway research and highway extension at or in connection with
Purdue University and for the annual road school held at Purdue
University. In addition, the money may be increased by federal
funds, which may be made available to the department for the
engineering and economic investigation of projects for future
construction and for highway research necessary in connection
therewith.
(b) For the purpose of disseminating knowledge of the highway
maintenance methods that are best suited to the various sections of
Indiana, the county and state highway officials, in cooperation with
Purdue University, may hold joint road meetings in the various
sections of Indiana.
(c) The aid authorized by this section shall be paid quarterly by
the department to Purdue University upon proper voucher. As added by P.L.18-1990, SEC.218.
IC 8-23-9-57 Cooperation with federal and other states' officials
Sec. 57. The department may cooperate with the governing
officials of state highway agencies and systems in one (1) or more
other states or the Federal Highway Administration in research in
conducting tests and experiments designed to develop the best
methods of constructing, improving, and maintaining the highways
in Indiana. In so cooperating with the governing officials of state
highway agencies and systems in one (1) or more other states or the
Federal Highway Administration and for the purpose of paying the
proportionate share of this state of the cost of the tests and
experiments, the department may expend the funds appropriated to
its use. As added by P.L.18-1990, SEC.218.
IC 8-23-9-58 Utility facilities; costs and delays due to facility relocations;
contractor's right to compensation or expenses
Sec. 58. (a) This section applies to a construction contract entered
into by the department and a contractor after June 30, 2005.
(b) The department may not include in a contract, or in any
specifications or other documents that are a part of or incorporated
in a contract, a provision that prohibits a contractor from receiving,
or restricts the contractor in receiving, reasonable compensation or
reasonable expenses directly related to unforeseen conditions
encountered during the construction project as a result of:
(1) a conflict with the facilities of a utility (as defined in
IC 8-1-9-2(a)); or
(2) delays due to the relocation of utility facilities;
that differ materially from the affected utilities or utility relocations
specified in the contract documents. As added by P.L.35-2005, SEC.3.
IC 8-23-9
Chapter 9. State Highway Contracts; General Powers
IC 8-23-9-1 Opening of sealed bids
Sec. 1. On the date and at the time and place named in the notice,
the commissioner shall receive all sealed proposals submitted and
shall publicly open the bids. The bids may be opened at any other
public place that the commissioner may designate on the day the bids
are to be opened. As added by P.L.18-1990, SEC.218.
IC 8-23-9-2 Rejection of proposals
Sec. 2. The commissioner may reject any and all proposals for
cause. As added by P.L.18-1990, SEC.218.
IC 8-23-9-3 Lowest and best bidder; letting of contract; determination
Sec. 3. Except as provided in sections 4 and 4.5 of this chapter,
the commissioner shall let the contract for the construction,
improvement, or maintenance of the road to the lowest and best
bidder. The determination of the lowest and best bidder must include
any requirement imposed under section 13 of this chapter. The
lowest and best bid may not be for a greater sum than the estimated
cost of the project. As added by P.L.18-1990, SEC.218. Amended by P.L.89-1991,
SEC.1.
IC 8-23-9-4 Acceptance of proposals; criteria
Sec. 4. Notwithstanding any other statute or rule adopted by the
department, the department may accept a proposal and award a
contract for the construction, improvement, or maintenance of a road
if:
(1) the lowest responsive and qualified bid is:
(A) less than one million dollars ($1,000,000);
(B) one (1) of four (4) or more bids received by the
department for the contract; or
(C) not more than fifteen percent (15%) above the estimated
cost of the project;
(2) the commissioner believes that awarding a contract under
this section is in the best interests of the state; and
(3) the award would comply with any requirement imposed
under section 13 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.50-2008,
SEC.2.
IC 8-23-9-4.5 Qualified work release programs; highway right-of-way
maintenance; exception to competitive bid requirements
Sec. 4.5. (a) As used in this section, "qualified work release
program" refers to:
(1) a work release program that is established by the department
of correction under IC 11-10-8 or IC 11-10-10; or
(2) a county work release program under IC 11-12-5.
(b) Notwithstanding IC 8-23-10, but subject to IC 8-23-24.5, the
commissioner may contract with a qualified work release program
for the maintenance of a highway right-of-way without taking
competitive bids. As used in this subsection, "highway right-of-way"
includes only the grass plats. As added by P.L.89-1991, SEC.2. Amended by P.L.182-2009(ss),
SEC.278.
IC 8-23-9-5 Construction and maintenance when no satisfactory proposal
received
Sec. 5. If, in the opinion of the commissioner, no satisfactory
proposal has been received, the commissioner may do the following:
(1) Purchase the necessary material and equipment.
(2) Employ the necessary labor.
(3) Perform the work of constructing, improving, or maintaining
the highway or highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-6 Spending limit when no satisfactory proposal received
Sec. 6. The commissioner may not expend more than eighty-five
percent (85%) of the amount of the lowest and best proposal
submitted for the kind of improvement proposed to be made when
acting under section 5 of this chapter. As added by P.L.18-1990, SEC.218.
IC 8-23-9-7 Adoption of rules governing purchases of material and equipment
Sec. 7. The department shall adopt rules governing the purchase
of material and equipment to the extent that complete competition is
ensured. As added by P.L.18-1990, SEC.218.
IC 8-23-9-8 Bid guarantee and performance bond requirements
Sec. 8. The department:
(1) shall require each bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is more than two
hundred thousand dollars ($200,000); and
(2) may require a bidder to submit a bid guarantee and a
performance bond payable to the state with the bidder's
proposal if the estimated cost of the project is not more than
two hundred thousand dollars ($200,000).
Instead of the bond, the department may establish by rule the
requirements that, in its discretion, are necessary to assure payment
of subcontractors, suppliers, and employees by the contractor. As added by P.L.18-1990, SEC.218. Amended by P.L.133-2007,
SEC.11.
IC 8-23-9-9 Bid guarantee and performance bond amounts
Sec. 9. The bid guarantee must be in the penal sum of an amount
equal to five percent (5%) of the bid price. The performance bond
must be in a penal sum set by the commissioner, but may not be less
than an amount equal to the bidder's proposal or the contract price,
where the bidder's proposal is accepted, with good and sufficient
sureties, to the approval of the commissioner, conditioned upon the
faithful performance of the work, in accordance with the profile,
plans, and specifications set forth in the proposal, and conditioned
also upon the payment by the contractor and by all subcontractors for
all labor performed or materials furnished or other services rendered
in the construction of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-10 Performance bonds; deposit; reinsurance; statements of amounts
due
Sec. 10. The bond shall be deposited with and held by the
commissioner for the use of any party interested in the bond. The
commissioner may require the reinsurance of any bond in the
amount, upon the terms, and with the surety approved by the
commissioner. A person, firm, limited liability company, or
corporation to whom any money is due for having performed labor
or furnished material or any other services rendered in the
construction, improvement, or maintenance of the highways shall,
within one (1) year after the acceptance of the labor, material, or
services by the commissioner, furnish the sureties on the bond a
statement of the amount due to any person, firm, limited liability
company, or corporation. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.154.
IC 8-23-9-11 Actions on performance bonds
Sec. 11. Suit may not be brought against the sureties on a bond
until the expiration of sixty (60) days after the furnishing of a
statement under section 10 of this chapter. If the indebtedness is not
paid in full at the expiration of a period of sixty (60) days, the
person, firm, limited liability company, or corporation may bring an
action in the person's, firm's, limited liability company's, or
corporation's own name upon the bond. The action must be
commenced within eighteen (18) months from the date of the final
acceptance of the highway or improvement. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.155.
IC 8-23-9-12 Performance bond form
Sec. 12. The bond provided in this section must be in substantially
the following form:
"KNOW ALL PERSONS BY THESE PRESENTS, THAT
___________________ as principal and ___________________ as
surety, are firmly bound unto the state of Indiana in the penal sum of
an amount equal to ____ percent of the principal's bid or the contract
price, if the proposal is accepted for the payment of which, well and
truly to be made, we bind ourselves, jointly and severally, and our
joint and several heirs, executors, administrators, and assigns, firmly
by these presents, this ____ day of _________, ____.
"THE CONDITIONS OF THE ABOVE OBLIGATIONS ARE
SUCH That, Whereas, the principal is herewith submitting a bid and
proposal for the erection, construction, and completion of
____________________ in accordance with the plans and
specifications approved and adopted by the department, which are
made a part of this bond:
"NOW, THEREFORE, if the department shall award the principal
the contract for work and the principal shall promptly enter into a
contract with the department in the name of the state of Indiana for
the work and shall well and faithfully do and perform the same in all
respects according to the plans and specifications adopted by the
department, and according to the time, terms, and conditions
specified in the contract to be entered into, and in accordance with
all requirements of law, and shall promptly pay all debts incurred by
the principal or any subcontractor in the construction of the work,
including labor, service, and materials furnished, then this obligation
shall be void; otherwise to remain in full force, virtue, and effect.
"IT IS AGREED that no modifications, omissions, or additions in
or to the terms of such contract or in or to the plans or specifications
therefor shall in any wise affect the obligation of such sureties on its
bond.
"IN WITNESS WHEREOF, we hereunto set our hands and seals
this ___ day of _________, 20__.". As added by P.L.18-1990, SEC.218. Amended by P.L.2-2005,
SEC.29.
IC 8-23-9-13 Trust bids
Sec. 13. (a) This section applies whenever a contract is awarded
under this chapter by acceptance of bids, proposals, or quotations.
(b) A bid, proposal, or quotation submitted by a trust (as defined
in IC 30-4-1-1(a)) must identify each:
(1) beneficiary of the trust; and
(2) settlor empowered to revoke or modify the trust. As added by P.L.18-1990, SEC.218.
IC 8-23-9-14 Partial payments; authorization
Sec. 14. The department may authorize partial payments to any
contractor performing any work under this chapter as the work
progresses under the general rules of the department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-15
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-16 Acceptance of completed work; relief of contractor's liability
Sec. 16. (a) After complete inspection has been made and it is
determined that the work has been done according to plans and
specifications, the commissioner of the department may approve and
accept completed work in sections of not less than one (1) mile
unless otherwise permitted by the contract documents.
(b) When a section of the work has been completed and accepted,
the contractor is as fully relieved of all liability for the maintenance,
reconstruction, or restoration of the section of the work completed
and accepted, or a part of the work, as the contractor would be if the
entire contract were finally completed and accepted.
(c) If the contract consists of two (2) or more projects as defined
by the department, the commissioner may approve and accept the
work of a completed project, and the contractor is relieved of all
liability for maintenance, reconstruction, or restoration of the project,
or a part of the project, as the contractor would be if the entire
contract were finally completed and accepted. As added by P.L.18-1990, SEC.218.
IC 8-23-9-17 Withdrawal and payment of retained percentages
Sec. 17. At any time after the contract has been substantially
completed, the contractor may be permitted to draw any part of the
retained percentage withheld by the department in an amount
determined by the department to be in the best interest of the state,
provided the contractor files a written request on forms provided by
the department for requests. The department may pay to the
contractor any part of the retained percentage the department
determines is in the best interest of the state even though the
contractor does not request payment, provided that the department
notifies the contractor of the department's intent to do so at least
thirty (30) days in advance of the payment. The fact that the
contractor is permitted to withdraw a part of the retained percentage,
or that the department pays a part of the retained percentage, shall in
no way release or relieve the contractor on the contract.
As added by P.L.18-1990, SEC.218. Amended by P.L.117-1995,
SEC.3; P.L.267-2001, SEC.1.
IC 8-23-9-18 Final payments; disputes
Sec. 18. (a) Each contract entered into under this chapter must
provide for final payment within one hundred eighty (180) days after
final acceptance of the contract. However, final payment may not be
made on any amount that is in dispute or the subject of a pending
claim, but final payment may be made on that part of a contract or
those amounts that are not in dispute or the subject of a pending
claim. Partial payment does not constitute a bar, an admission, or
estoppel or have any other effect as to those payments in dispute or
the subject of a pending claim.
(b) For the purpose of this section, a dispute exists when the
contractor makes any claim for increase or decrease to any part of the
contract or seeks additional compensation for any reason. As added by P.L.18-1990, SEC.218.
IC 8-23-9-19
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-20
Repealed
(Repealed by P.L.267-2001, SEC.2.)
IC 8-23-9-21 Contract form; approval
Sec. 21. Every contract for highway work authorized to be made
under this chapter shall be made in the name of the state, signed by
the commissioner and the contracting parties, and acknowledged
before an officer authorized by law to administer oaths. The contract
shall be submitted to and approved by the attorney general with
regard to legality and form. As added by P.L.18-1990, SEC.218.
IC 8-23-9-22 Hourly wage rates
Sec. 22. A bid submitted for the construction or betterment of a
state highway must contain a statement stipulating the hourly rate for
laborers. The hourly rate may not be lower than the hourly rate paid
for common labor by the department. The hourly rate in the bid
becomes a part of the contract. As added by P.L.18-1990, SEC.218.
IC 8-23-9-23 Residency requirement for unskilled laborers
Sec. 23. It must be a condition of every contract let by the
department for the construction of a state highway or bridge that all
unskilled laborers employed on the work be residents of the county
or counties in which the highway or bridge is being constructed if the
labor is available. The department may designate the class of labor
that is unskilled. However, if this subsection is in violation of a
regulation of a federal authority, the provision may be eliminated
from a contract that is payable in whole or in part with federal funds. As added by P.L.18-1990, SEC.218.
IC 8-23-9-24 Survey monuments; procedure upon removal or burial
Sec. 24. If in the construction or maintenance of a state highway
it is necessary to remove or bury a monument marking or evidencing
an established corner, the department shall cause to be set in the
pavement or right-of-way at the place where the monument was
located a monument capable of activating a metal detection device.
The top of the monument must be level with the pavement or the
grade of the right-of-way. The department shall cause a
memorandum of the monument to be filed in the county surveyor's
office of the county. As added by P.L.18-1990, SEC.218.
IC 8-23-9-25 Nonperformance or abandonment of contracts; completion of
work; costs and expenses
Sec. 25. Any time a contractor:
(1) fails to commence or carry forward;
(2) improperly performs;
(3) has abandoned; or
(4) fails or refuses to complete;
a contract executed under this chapter, the commissioner may relet
the work or may complete the work. The commissioner shall deduct
the cost and expense from any money that may be due the contractor,
and if there is not sufficient money due the contractor to pay for the
work, the commissioner shall require the bondsmen to pay for it. The
attorney general shall prosecute suit in the name of the state for the
collection of the payment under this section. As added by P.L.18-1990, SEC.218.
IC 8-23-9-26 Claims against contractors; filing with department
Sec. 26. A person, firm, limited liability company, or corporation
to whom any money is owed for having performed labor or furnished
material or other service in the construction of a highway or bridge
in the state highway system or in the construction or repair of a
building or other structure for the department, whether the work was
performed for a contractor or subcontractor, may at any time within
sixty (60) days of the performance of the last of the labor or the
furnishing of the last of the material or other service and within thirty
(30) days after the final acceptance of the improvement, file with the
department a duly verified itemized statement of the amount due the
person, firm, limited liability company, or corporation, stating
whether the labor or material was performed for or furnished to a
contractor or subcontractor, giving the name of the contractor or
subcontractor and the dates the labor or material was performed or
furnished, the rate or cost, the character of the labor, material, or
service, and the post office address of the claimant. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.156.
IC 8-23-9-27 Claims against contractors; mailing of copies
Sec. 27. A claim under section 26 of this chapter must be filed in
triplicate, and the department shall send a copy by certified mail to
the contractor and to the surety on the bond of the contractor. The
failure to mail copies to the contractor and surety does not affect the
validity of a claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-28 Claims against contractors; retaining amount of claim
Sec. 28. Upon the receipt of a claim under section 26 of this
chapter, the department shall retain out of the amount due the
contractor the amount of the claim. As added by P.L.18-1990, SEC.218.
IC 8-23-9-29 Claims against contractors; allowance or rejection
Sec. 29. Within twenty (20) days of the receipt of a copy under
section 27 of this chapter, the contractor shall either allow or reject
the claim. The contractor shall notify the department in writing of the
allowance or rejection. As added by P.L.18-1990, SEC.218.
IC 8-23-9-30 Claims against contractors; notice of rejection; commencement of
actions
Sec. 30. If a claim is rejected in whole or in part, the department
shall immediately notify the claimant of the action by certified mail.
Within ninety (90) days after receiving notice of a rejection the
claimant must commence an action against the contractor or the
surety on the bond in a court of competent jurisdiction to recover the
amount of the claim. Upon the filing of an action, the claimant shall
procure a certificate from the clerk of the court under the seal of
office that the action has been filed and listing the date of filing and
the parties. The claimant shall promptly forward the certificate to the
department. As added by P.L.18-1990, SEC.218.
IC 8-23-9-31 Claims against contractors; payment of amount adjudged due
Sec. 31. If an action is filed and the department notified under
section 30 of this chapter, the department shall continue to hold the
amount until the final determination of the action. If it is adjudged
that the amount or a part is due to the claimant, the department shall
pay the amount adjudged due to the claimant to the clerk of the court
rendering the judgment. As added by P.L.18-1990, SEC.218.
IC 8-23-9-32 Claims against contractors; failure to file certificate
Sec. 32. If within ninety (90) days after the date of notice of
rejection under section 29 of this chapter a claimant fails to file with
the department a certificate of a clerk, the department shall pay the
amount held on the claim to the contractor if otherwise entitled to
receive the amount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-33 Claims against contractors; additional remedy
Sec. 33. In addition to the remedy given in sections 26 through 31
of this chapter, a person, firm, limited liability company, or
corporation may proceed against a contractor and surety as provided
by section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.157.
IC 8-23-9-34 Claims against contractors; filing of actions
Sec. 34. Whenever a claim has been filed under this chapter with
the department by a person, firm, limited liability company, or
corporation who has performed labor or furnished material or other
service in the construction, repair, or maintenance of a highway or
bridge in the state highway system, or in the construction, repair, or
renovation of a building or structure used by the department, and
against a contractor with the department, the department shall notify
the person, firm, limited liability company, or corporation filing the
claim that within ninety (90) days after the date of the notice the
person, firm, limited liability company, or corporation must proceed
by an action at law in a court of competent jurisdiction against the
contractor or the surety on the contract bond of the contractor for the
collection of the amount of the claim. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.158.
IC 8-23-9-35 Claims against contractors; mailing or publication of notice
Sec. 35. Notice under section 34 of this chapter shall be mailed to
the person, firm, limited liability company, or corporation by
certified mail to the last known address. If the address of the person,
firm, limited liability company, or corporation is unknown, the notice
shall be given by publication once each week for two (2) successive
weeks in two (2) newspapers of general circulation published in the
county or counties where the contract with the department was
performed. In a notice given by publication, the names of all persons,
firms, limited liability companies, or corporations who have filed
claims against the contractor and who have not been notified by mail
may be included. Notice under this section must state that action
must be filed on the claim within ninety (90) days of the date of the
notice. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.159.
IC 8-23-9-36 Claims against contractors; certificates of filing of actions
Sec. 36. Upon the filing of an action under section 34 of this
chapter, the person, firm, limited liability company, or corporation
filing the action shall procure from the clerk of the court where filed
a certificate under the seal of the court that an action has been filed
with the date of filing and the names of the parties. The certificate
shall be within five (5) days after the date of filing the action
forwarded by the person, firm, limited liability company, or
corporation to the department. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.160.
IC 8-23-9-37 Claims against contractors; retention of security for protection of
claimant
Sec. 37. Upon the filing of an action and the receipt of a
certificate under section 36 of this chapter, the department shall hold
the money, security, or other thing held by the department for the
protection of the claim, until the final determination of the action. If
it is adjudged that a part of the claim is due to the person, firm,
limited liability company, or corporation, the department shall pay
to the clerk of the court rendering judgment out of the cash retained
for the claimant the amount retained by the department for the
purpose. If the department retained for the protection of the claimant
a check, bond, or security other than cash, the department shall notify
the claimant of the fact. The claimant shall be subrogated to the
rights of the department in the check, bond, or security other than
cash, to the amount of the judgment, which rights the claimant may
enforce in an appropriate action. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.161.
IC 8-23-9-38 Claims against contractors; failure to file action and certificate
Sec. 38. If a claimant does not file an action under section 36 of
this chapter within the time specified in the notice or fails to file with
the department the certificate of the clerk, the department shall pay
the amount held by the department on the claim to the contractor. If
the claim has been protected by check, bond, or security, the check,
bond, or security shall be delivered to the contractor. If the check,
bond, or security has been deposited for the protection of two (2) or
more claimants, the check, bond, or other security shall be held by
the department for the protection of all claimants until all are either
released, waived, or satisfied. As added by P.L.18-1990, SEC.218.
IC 8-23-9-39 Claims against contractors; additional proceedings
Sec. 39. Sections 34 through 38 of this chapter do not limit or
abridge the right of a person, firm, limited liability company, or
corporation to proceed against a contractor and surety as provided by
section 10 of this chapter. As added by P.L.18-1990, SEC.218. Amended by P.L.8-1993,
SEC.162.
IC 8-23-9-40 Railroad crossings; separation of grades
Sec. 40. Whenever a state highway is being constructed or
reconstructed and the highway crosses or intersects a railroad, the
department may, if in its opinion it is practicable, separate grades at
the crossings. If the department is unable to agree with the railroad
as to the separation and the method of accomplishing the separation,
the department shall apply to the utility regulatory commission by
verified petition asking that the grades be separated at the crossing. As added by P.L.18-1990, SEC.218.
IC 8-23-9-41 Railroad crossings; separation of grades; rights, powers, and duties
of parties involved
Sec. 41. Upon the filing of a petition under section 40 of this
chapter, the utility regulatory commission has and shall exercise all
of the powers and authority conferred upon it by IC 8-6-1. A railroad,
interurban street railroad, or suburban street railroad whose tracks
are involved in a crossing has all the rights conferred by and is
subject to all the duties imposed by IC 8-6-1. As added by P.L.18-1990, SEC.218.
IC 8-23-9-42 Railroad crossings; separation of grades; payment of costs
Sec. 42. When any separation of grades is made by agreement or
by order, the department shall pay one-half (1/2) of the total expense
of a separation as a part of the cost of the highway, and the railroad
whose tracks are involved in the separation shall pay the other
one-half (1/2) of the total expense. As added by P.L.18-1990, SEC.218.
IC 8-23-9-43 Railroad crossings; separation of grades; multiple railroads;
payment of costs
Sec. 43. If two (2) or more railroads, interurban street railroads,
or suburban street railroads are located in proximity to each other as
to be involved in a single separation of grades, the utility regulatory
commission shall pay the half of the cost not paid by the department,
apportioned between the railroads, interurban street railroads, or
suburban street railroads in proportion as the cost of the separation
has been enhanced by the presence of the respective railroads,
interurban street railroads, or suburban street railroads. As added by P.L.18-1990, SEC.218.
IC 8-23-9-44 Railroad crossings; separation of grades; maintenance
Sec. 44. After the construction of a separation, the department
shall maintain the highway and the structures supporting it and the
railroad shall maintain its roadway and track and the structures
supporting the same. As added by P.L.18-1990, SEC.218.
IC 8-23-9-45 Railroad crossings; improvement and maintenance
Sec. 45. Where the track or tracks of any steam, electric,
interurban, or street railroad company occupies any part of a highway
that is ordered improved and maintained by the department under this
chapter, the railroad company shall improve and maintain, or pay for
the cost of improving that part of the highway occupied by its tracks,
including the space between the rails, the space between the tracks,
if there is more than one (1) track, and the space eighteen (18) inches
in width on the outside of the rails. In all cases where practicable,
improvement to the full width shall be constructed outside the area
occupied by the tracks, and, where not practicable to do so, the
department may require the tracks to be removed to that part of the
highway outside the area to be so improved. As added by P.L.18-1990, SEC.218.
IC 8-23-9-46 Railroad crossings; width of improvements
Sec. 46. Whenever a highway improvement under section 45 of
this chapter is made so as to embrace within its limits the tracks of
a railroad, interurban, suburban, or street railroad, the improvement
shall be made of sufficient width to give as much room for general
travel on the side or sides and outside of the tracks as is given in
places where there are no tracks within the improvement. As added by P.L.18-1990, SEC.218.
IC 8-23-9-47 Railroad crossings; election by railroad companies to make or pay
for improvements
Sec. 47. A railroad company may elect, by written notice filed
with the department, not less than twenty (20) days before the date
on which the contract for the improvement of a highway is to be let,
to improve the part of the highway occupied by its tracks or to pay
for the improvement done by the department. If the railroad company
elects to improve the part of the highway occupied by its tracks, the
company shall perform the work of improving the part of the
highway with material and in a manner and according to plans and
specifications that the department prescribes and shall commence,
proceed with, and complete the work within a time to be fixed by the
department. If the railroad company fails to do so, the company is
subject to a fine of not to exceed fifty dollars ($50) per day for each
and every day that the improvement is not commenced or completed
after the date named by the department. If the railroad company
elects to pay for the improvement as done by the department, any
sums assessed to cover the cost of the improvement, together with all
the cost in collecting the costs, including attorney's fees, to be fixed
by the court and taxed as costs in the action brought to enforce
payment, shall, from the date of filing a statement of the assessment,
attested by the department, in the office of the county recorder of the
county in which the improvement was made, constitute a lien, to
which only the lien of the state for state, county, township, and
school taxes is paramount. As added by P.L.18-1990, SEC.218.
IC 8-23-9-48 Tearing up and disturbing highways; permit; unauthorized signs
and markers; violations
Sec. 48. (a) A state highway may not be torn up or otherwise
disturbed for any purpose without the written permit of the
commissioner and then only in accordance with the regulations
prescribed by the commissioner. All work shall be done under the
department's supervision, and all the cost of replacing the highway
in as good condition as before the highway was disturbed, shall be
paid by the person to whom or in whose behalf the permit was given.
The department shall mark with proper markers, showing the number
of the highway, all state highways, including the routes of the
highways through cities and towns, together with the caution and
direction signs that the department considers advisable.
(b) It is a Class C infraction for a person to put, place, or maintain
within twenty (20) feet of the right-of-way limits of a state highway,
outside the limits of a city or town a sign or other device containing
the words "stop", "caution", "slow", or any other word or device that
also might be construed as a warning to persons using the highway.
(c) It is a Class C infraction for a person to construct or maintain
a sign or advertising device within one hundred (100) feet of the
right-of-way of such a highway that obstructs the view of the
highway of a person traveling the highway for a distance of five
hundred (500) feet or less from the sign or device as the person
approaches the sign or device. The department may remove unlawful
signs, markers, and devices.
As added by P.L.18-1990, SEC.218.
IC 8-23-9-49 Approaches and drainage structures; construction; private
facilities
Sec. 49. The construction of public road approaches, drainage
structures for the reconstruction of definitely existing private
entrances, and the drainage necessary for the protection of a state
highway shall be included as a part of the improvement of the
highway. Upon the completion of the highway, the owners or
occupants of adjoining lands shall construct and keep in repair all
private approaches or driveways from the highways, but no
approaches or driveways shall be constructed in a manner as to
obstruct or interfere with the highways or with a drain or ditch that
has been constructed as a part of the highway. As added by P.L.18-1990, SEC.218.
IC 8-23-9-50 Use of prison labor in preparation and manufacturing of road
materials
Sec. 50. The department, with the approval of the governor, may
enter into an agreement with the authorities of any of the penal
institutions of the state, county, or city for the use of prison labor in
the preparation and manufacturing of road materials. As added by P.L.18-1990, SEC.218.
IC 8-23-9-51 Drains, culverts, and bridges; bridge construction contracts
Sec. 51. All drains, culverts, and bridges on any state highways
shall be considered as part of the state highway. All bridges having
a span over twenty (20) feet in length may be let as a separate
contract, the procedure to be the same as in the letting of contracts
for state highways. As added by P.L.18-1990, SEC.218.
IC 8-23-9-52 Contracts specifying borrow or clearing and grubbing; standards
Sec. 52. (a) A department contract that specifies borrow or
clearing and grubbing must require the contractor to conform to the
department's manual of standard specifications and must include
standards for the following:
(1) Borrow pit back-slopes.
(2) Control of drainage water.
(3) Degree of restoration.
(b) Restoration of borrow areas and disposal areas must meet or
exceed the standards for seeding and sodding of roadside areas.
(c) Final cleanup provisions of the contract apply to the removal
and disposal of perishable materials and debris from the highway
right-of-way to an off-road site. As added by P.L.18-1990, SEC.218. IC 8-23-9-53 Trench safety systems; costs
Sec. 53. (a) This section applies to a construction, an
improvement, or a maintenance project that requires creation of a
trench of at least five (5) feet in depth.
(b) OSHA regulations, 29 C.F.R. 1926, Subpart P, for trench
safety systems shall be incorporated into the contract documents for
a public works project.
(c) The contract documents for a public works project must
provide that the cost for trench safety systems shall be paid for:
(1) as a separate pay item; or
(2) in the pay item of the principal work with which the safety
systems are associated. As added by P.L.18-1990, SEC.218.
IC 8-23-9-54 State highway fund; creation and management
Sec. 54. (a) To provide funds for carrying out the provisions of
this chapter, there is created a state highway fund from the following
sources:
(1) All money in the general fund to the credit of the state
highway account.
(2) All money that is received from the Department of
Transportation or other federal agency and known as federal
aid.
(3) All money paid into the state treasury to reimburse the state
for money paid out of the state highway fund.
(4) All money provided by Indiana law for the construction,
maintenance, reconstruction, repair, and control of public
highways, as provided under this chapter.
(5) All money that on May 22, 1933, was to be paid into the
state highway fund under contemplation of any statute in force
as of May 22, 1933.
(6) All money that may at any time be appropriated from the
state treasury.
(7) Any part of the state highway fund unexpended at the
expiration of any fiscal year, which shall remain in the fund and
be available for the succeeding years.
(8) Any money credited to the state highway fund from the
motor vehicle highway account under IC 8-14-1-3(4).
(9) Any money credited to the state highway fund from the
highway road and street fund under IC 8-14-2-3.
(10) Any money credited to the state highway fund under
IC 6-6-1.1-801.5, IC 6-6-4.1-5, or IC 8-16-1-17.1.
(11) Any money distributed to the state highway fund under
IC 8-14-14, IC 8-15.5, or IC 8-15.7.
(b) All expenses incurred in carrying out this chapter shall be paid
out of the state highway fund. As added by P.L.18-1990, SEC.218. Amended by P.L.192-2002(ss),
SEC.150; P.L.47-2006, SEC.43. IC 8-23-9-55 Use of state highway fund
Sec. 55. Money in the state highway fund shall be used for the
following:
(1) Operation of the department.
(2) Construction, reconstruction, operation, maintenance, and
control of the state highways that are the responsibility of the
department and of tollways that are the responsibility of the
department under IC 8-15-3. As added by P.L.18-1990, SEC.218.
IC 8-23-9-56 Research assistance to Purdue University
Sec. 56. (a) The department may cooperate with and assist Purdue
University in developing the best methods of improving and
maintaining the highways of the state and the respective counties. In
so cooperating with Purdue University and for the purpose of
developing and disseminating helpful information concerning road
construction and improvement and the operation of the highways of
the state and the counties, the department may expend money
annually from the funds appropriated to the department's use for the
use and benefit of Purdue University in carrying on programs of
highway research and highway extension at or in connection with
Purdue University and for the annual road school held at Purdue
University. In addition, the money may be increased by federal
funds, which may be made available to the department for the
engineering and economic investigation of projects for future
construction and for highway research necessary in connection
therewith.
(b) For the purpose of disseminating knowledge of the highway
maintenance methods that are best suited to the various sections of
Indiana, the county and state highway officials, in cooperation with
Purdue University, may hold joint road meetings in the various
sections of Indiana.
(c) The aid authorized by this section shall be paid quarterly by
the department to Purdue University upon proper voucher. As added by P.L.18-1990, SEC.218.
IC 8-23-9-57 Cooperation with federal and other states' officials
Sec. 57. The department may cooperate with the governing
officials of state highway agencies and systems in one (1) or more
other states or the Federal Highway Administration in research in
conducting tests and experiments designed to develop the best
methods of constructing, improving, and maintaining the highways
in Indiana. In so cooperating with the governing officials of state
highway agencies and systems in one (1) or more other states or the
Federal Highway Administration and for the purpose of paying the
proportionate share of this state of the cost of the tests and
experiments, the department may expend the funds appropriated to
its use. As added by P.L.18-1990, SEC.218.
IC 8-23-9-58 Utility facilities; costs and delays due to facility relocations;
contractor's right to compensation or expenses
Sec. 58. (a) This section applies to a construction contract entered
into by the department and a contractor after June 30, 2005.
(b) The department may not include in a contract, or in any
specifications or other documents that are a part of or incorporated
in a contract, a provision that prohibits a contractor from receiving,
or restricts the contractor in receiving, reasonable compensation or
reasonable expenses directly related to unforeseen conditions
encountered during the construction project as a result of:
(1) a conflict with the facilities of a utility (as defined in
IC 8-1-9-2(a)); or
(2) delays due to the relocation of utility facilities;
that differ materially from the affected utilities or utility relocations
specified in the contract documents. As added by P.L.35-2005, SEC.3.
