Indiana Code 36-9-31-4. Contracts or agreements with board; competitive bidding; proposal procedure; action to contest validity of award; negotiated contracts; insurance
(b) Overall cost, including construction costs, tipping fees, and reductions in costs resulting from the sale of byproducts, should in all cases be a major criterion in the selection of contractors for award of contracts under this section. The board shall consider the highly complex and innovative nature of byproduct recovery technology, the variety of waste disposal technology available, the desirability of flexibility for the development of these complex facilities, and the economic and technical utility of contracts for byproduct recovery projects that include in their scope various combinations of design, construction, operations, management, or maintenance responsibilities over prolonged periods of time and that in some instances it may be beneficial to the consolidated city to award a contract on the basis of factors other than cost alone, for example, facility design, system reliability, energy efficiency, compatibility with source separation and other recycling systems and environmental protection. Accordingly, and notwithstanding any other statute, a contract entered into between the board on behalf of the city and any person under this section may be awarded by the board by following either of the following procedures:
Terms Used In Indiana Code 36-9-31-4
- Board: refers to the board of public works of the consolidated city, subject to IC 36-3-4-23. See Indiana Code 36-9-31-2
- Byproduct: means energy and materials from wastes in a form that will allow their reuse. See Indiana Code 36-9-31-2
- Contract: A legal written agreement that becomes binding when signed.
- Disposal: includes the treatment of as well as the placing, processing, confining, compacting, storing, or covering of waste. See Indiana Code 36-9-31-2
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Facility: means any facility, plant, works, system, building, structure, improvement, machinery, equipment, fixture, or other real or personal property that is to be used, occupied, or employed for the storage, processing, or disposal of waste or the recovery and marketing by any means of any byproduct, such as recycling centers, transfer stations, trucks, bailing facilities, rail haul or barge haul facilities, processing systems, byproduct recovery facilities or other facilities for reducing waste volume, sanitary landfills, plants and facilities for compacting, composting, or pyrolization of wastes, incinerators, and other waste disposal, reduction, or conversion facilities or any combination thereof. See Indiana Code 36-9-31-2
- in writing: include printing, lithographing, or other mode of representing words and letters. See Indiana Code 1-1-4-5
- Processing: means an operation for the purpose of modifying the characteristics or properties of waste to facilitate transportation of, disposal of, or the recovery of byproducts from waste. See Indiana Code 36-9-31-2
- Proposal: means a written response to a request for proposals. See Indiana Code 36-9-31-2
- Proposer: means any person that has submitted a proposal in response to a request for proposals issued to the person by the board. See Indiana Code 36-9-31-2
- Public notice: means a notice published in accordance with IC 5-3-1. See Indiana Code 36-9-31-2
- Request for proposals: means an invitation to submit a proposal to the consolidated city for the construction, modification, acquisition, operation, or combination of any of these, of the facility under section 4 of this chapter. See Indiana Code 36-9-31-2
- Request for qualifications: means an invitation by the consolidated city to any person to submit qualifications in order to qualify to submit a proposal. See Indiana Code 36-9-31-2
- Revenues: means the amounts received by the consolidated city from the operation or ownership of facilities, including amounts received from the collection of fees under section 8 of this chapter, amounts received under financing agreements under section 11 of this chapter, tipping fees, lease rentals, and amounts received from the sale or other disposition of byproducts, but not including any amounts derived from the levy of taxes. See Indiana Code 36-9-31-2
- Solid waste: has the meaning set forth in IC 36-9-30-2, except that the term excludes sewage and other highly diluted water-carried materials or substances and those in gaseous forms, excludes waste when the waste is to be reused or reclaimed as salvage, and excludes waste regulated under IC 13-22-1 through IC 13-22-8 and IC 13-22-13 through IC 13-22-14. See Indiana Code 36-9-31-2
- Statute: A law passed by a legislature.
- Tipping fees: means the charge by any person for the disposal of waste at a facility. See Indiana Code 36-9-31-2
- Waste: includes solid waste and water disposed of in conjunction with the disposal of solid waste, as well as liquid waste (consisting of sludge from air or water pollution control facilities or water supply treatment facilities), when disposed of in conjunction with the disposal of solid waste. See Indiana Code 36-9-31-2
- Year: means a calendar year, unless otherwise expressed. See Indiana Code 1-1-4-5
(2) Compliance with subsection (c).
(c) The board may issue a request for qualifications and request for proposals prepared by or for the consolidated city in accordance with the following provisions:
(1) All persons may be required to prequalify as a proposer by submitting information relating to the experience of the proposer, the basis on which the proposer purports to be qualified to carry out all work required by a proposed contract, and the financial condition of the proposer. Minimum requirements may be set by the board as to these minimum qualifications in a request for qualifications issued before that.
(2) Before the issuance of a request for proposals under this section, the board shall adopt a proposed request for proposals and shall publish a public notice that may contain a request for qualifications, if a prequalification process has been adopted under subdivision (1), including the criteria on which proposers may be selected. The public notice must include the intent to issue a request for proposals, and must further designate times and places where the proposed request for proposals may be viewed by the general public. Comments may be addressed to the scope or contents of the proposed request for proposals. The board shall allow not less than a thirty (30) day period for the submission of qualifications and comments on the proposed request for proposals, following which the board shall select a proposer and adopt a request for proposals. After that, the board shall notify each proposer that is selected of the selection, inform each proposer of the date and place proposals are to be submitted, and deliver to each proposer a copy of the request for proposal.
(3) Requests for proposals must include a clear identification and specification of all elements of cost that would become charges to the city, in whatever form, in return for the fulfillment by the proposer of all tasks and responsibilities established by the request for proposals for the full lifetime of a proposed contract, including such appropriate matters as proposals for project staffing, implementation of all work tasks, carrying out of all responsibility required by the proposed contract, the cost of planning, design, construction, operation, management, or maintenance of any facility, or the cost of processing or disposal of solid waste, and a clear identification and specification of any revenues that would accrue to the city from the sale of any byproducts or from any other source, and such other information as the board may determine to have a material bearing on its ability to evaluate any proposal in accordance with this section. However, the board may prescribe the form and content of proposals and, in any event, the proposer must submit sufficiently detailed information to permit a fair and equitable evaluation by the board of the proposal. In addition, the board in the request for proposals may set such maximum allowable cost limits as it determines to be appropriate.
(4) Proposals may not be received by the board before thirty (30) days following notification to the proposers of their selection.
(5) Proposals received under this section shall be evaluated by the board as to net cost or revenues and, in the manner consistent with provisions set forth in the requests for proposals, may be evaluated on the basis of additional factors such as the technical evaluation of facility design, net energy efficiency, environmental protection, overall system reliability, and financial condition of the proposer.
(6) The board, on behalf of the city, may negotiate with the proposer and may make a contract award to any responsible proposer. The board shall give public notice of a public hearing, which notice must designate the time and place of a public hearing at which hearing the board shall hear comments upon the contract to be awarded. Following the public hearing, the board shall make a contract award to any responsible proposer selected under this section based on a determination by the board that the selected proposal is the most responsive to the needs of the city. The award must be in the form of a resolution and must include particularized findings relative to factors evaluated under this section, indicating that the city’s needs are met by the award and that the action is in the public interest.
(d) An action to contest the validity of the contract awarded or the procedure by which it was awarded must be brought within thirty (30) days following the award of the contract. After that date, the contract is incontestable for any cause.
(e) Notwithstanding any other statute, any contract entered into by the board with any person on behalf of the consolidated city for the collection of solid waste may be awarded by negotiation or by competitive bids. The board shall consider the following factors in awarding a negotiated contract:
(1) Price quoted by the proposed contractor.
(2) Prior experience of the proposed contractor.
(3) Financial status of the proposed contractor.
(4) Number of vehicles and other equipment to be used by the proposed contractor.
(5) Any other factors related to the proposed contractor’s ability to perform under the contract.
If a contract is awarded by negotiation, the reason for using negotiation as the method to award the contract must be stated in writing by the board at the time that the contract is awarded. A copy of this statement must be kept available for public inspection.
(f) The board shall award competitive bid contracts to the lowest responsible and responsive bidder after advertising for bids. However, if a contract is not awarded to the lowest bidder, the factors used to justify that award must be stated in the minutes or memoranda at the time the award is made, and a copy of the minutes or memoranda must be kept available for public inspection. The procedures for granting a collection contract by competitive bidding shall be prescribed in an ordinance adopted by the city-county legislative body or, in the absence of such an ordinance, by IC 36-1-12-4.
(g) The board may contract with multiple parties for solid waste collection and may award separate contracts for separate geographical areas within the consolidated city.
(h) This subsection applies to contracts of less than three hundred thousand dollars ($300,000) a year for the collection of solid waste. The board may require a waste collector under a contract to carry insurance coverage in a form which protects against losses in excess of the amount covered by other liability insurance policies. The board may not require a waste collector to carry such umbrella insurance coverage in excess of one million dollars ($1,000,000). A waste collector under a contract must provide one (1) of the following as determined by the board:
(1) A performance bond or an irrevocable letter of credit equal to ten percent (10%) of the annual contract price.
(2) An agreement that ten percent (10%) of the annual contract price may be withheld by the board as security for performance of the contract.
As added by Acts 1982, P.L.77, SEC.27. Amended by P.L.357-1987, SEC.1; P.L.175-1990, SEC.1.