§ 36-9-31-4 — Contracts or agreements with board; competitive bidding; proposal procedure; action to contest validity of award; negotiated contracts; insurance

(a) Notwithstanding any statute relating to the
length, duration, and terms of contracts and agreements, the board on
behalf of the consolidated city may enter into any contract or agreement
with any person upon such terms and conditions as may be agreed
upon, for the design, construction, operation, financing, ownership, or
maintenance of a facility for waste disposal in accordance with the
requirements and conditions of this section. Before or after the
expiration or termination of the term or duration of any contract or
agreement entered into or granted under this section, the board, in
accordance with the requirements and conditions of this section, may
from time to time enter into amended, extended, supplemental, new, or
further contracts or agreements with the same or any other person for
any purpose referred to in this section.
(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:
(1) Public bidding in compliance with IC 36-1-12.
(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.