| No. |
Issue: |
Short Answer: |
Sample Provision: |
| 1. |
Does the relevant law allow solicited and unsolicited proposals for PPP projects? |
Solicited Only |
§8-15.7-4-2. The department must issue a RFQ or RFP to pursue a PPP. |
| 2. |
Does the relevant law permit local/state/federal funds to be combined with private sector funds on a PPP project? |
Yes. |
§8-15.7-8-7. Public funds may be used for the purpose of financing a qualifying project and may be mixed and aggregated with funds provided by or on behalf of the operator or other private entities. |
| 3. |
Who has rate-setting authority to impose user fees and under what circumstances may they be changed or otherwise reviewed? |
The department and authority. |
§8-15-2-14. The authority may fix, revise, change, and collect tolls for each toll road project.
§8-15.5-7-1. The authority may fix, and revise user fees that an operator may charge as part of a PPP agreement.
§8-15.7-5-2. The department may fix and revise the amounts of user fees that an operator may charge and collect on a qualifying transportation project per a PPP agreement. |
| 4. |
Does the relevant law permit TIFIA loans to be used on PPP projects? |
Yes. |
§8-15.7-8-1. |
| 5. |
Is the number of PPP projects limited to only a few "pilot" or "demonstration" projects? |
Yes. |
§8-15.5-1-2. After August 1, 2006, the Indiana Finance Authority may not enter into an agreement that would impose tolls, unless authorized by statute. |
| 6. |
Are there restrictions concerning the geographic location of PPP projects? |
Yes. |
§8-15-2-1 and 8-15-3-9 the governor must approve the location of any tollway. §8-15.5-1-2 prohibits the construction of a toll road in specified locations in Indiana without prior legislative approval. §8-23-7-22. The Governor must approve any conversion of a State highway to a tollway. |
| 7. |
Are there restrictions concerning the particular mode of transportation eligible to be developed as a PPP project (e.g., truck, passenger auto, freight rail, passenger rail)? |
Yes. |
See §8-15-3-7. Definition of “tollway”. See also §8-15.7-2-14. Definition of “project”. |
| 8. |
Is there a legal requirement to remove tolls after the repayment of project debt? |
No. |
|
| 9. |
Does the relevant law permit the conversion of existing or partially constructed highways into toll roads? |
Yes. |
See §8-23-7-22 and 23. |
| 10. |
Is there a restriction that prevents the revenues from PPP projects from being diverted to the state's general fund or for other unrelated uses? |
Yes. |
See §§8-15-2-15 and 27, 8-15.5-11-3, and
8-15.7-5-5 |
| 11. |
Is prior legislative approval required when an individual PPP proposal is received? |
Yes. |
§8-15.5-1-2. A PPP agreement for toll roads requires passage of an authorizing statute after August 1, 2006. |
| 12. |
Are there any similar requirements that subject the PPP proposal or the negotiated PPP agreement to a local veto? |
|
But §8-15.5-4-9 requires a public hearing on the preliminary selection of a toll road operator. |
| 13. |
Does the relevant law permit all kinds of procurements for PPP project delivery? These might include, for example, calls for projects, competitive RFQ and RFPs, qualifications review followed by an evaluation of proposer concepts, use of design build, procurements based on financial terms such as return on equity rather than on price, long-term asset leases for some period of up to 60 years or longer from the time operations commence? |
Yes. |
§8-15.5-4-1 requires the authority to issue a RFP before entering into a PPP agreement.
§8-15.7-4-2 establishes the competitive proposal procedures the department must follow to enter into a PPP agreement. |
| 14. |
Are there explicit exemptions/supplemental procurement authority from the application of the state's general procurement laws? |
Yes. |
§8-15.5-4 provides for the selection of an operator by RFP. §8-15.5-6-2 exempts an operator or contractor or subcontractor of the operator from certain State procurement statutes. §8-15.7-4-2 provides for competitive proposals procedures for a PPP agreement. |
| 15. |
Does the relevant law authorize the public sector to grant long-term leases/franchises for the construction, operation and maintenance of toll facilities? |
Yes. |
§8-15.5-5-2 allows the authority to enter into a PPP agreement for toll roads for up to 75 years. §8-15.7-5-1 allows concession payment, lease payment, or fees to be paid to the department for the development, financing, or operation of a qualifying project. |
| 16. |
Does the public sector have the authority to issue toll revenue bonds or notes? |
Yes. |
See §8-15-2-1. |
| 17. |
Does the public sector have the authority to form nonprofits and let them issue debt on behalf of a public agency? |
No express provision. |
|
| 18. |
Does the relevant public agency have the authority to hire its own technical and legal consultants? |
Yes. |
§8-15-2-5. The authority hire technical and legal consultants. |
| 19. |
Does the relevant law permit the public sector to make payments to unsuccessful bidders for work product contained in their proposals? |
Yes. |
§8-15.7-4-4. The department may pay a stipulated amount to an unsuccessful offeror for use of work product from an unsuccessful bid. |
| 20. |
Can the agency charge application fees to offset its proposal review costs? |
No express provision. |
|
| 21. |
Does the relevant law allow adequate time for the preparation, submission and evaluation of competitive proposals? Note that the agency should have the authority to establish these deadlines on a case-by-case basis depending on the complexity and scope of the initial proposal or other factors that might promote competition (e.g., more review time during holiday periods). |
Yes. |
No express provision. |
| 22. |
Is the public sector required to maintain comparable non-toll routes when it establishes new toll roads? |
No. |
|
| 23. |
Are there any non-compete clause prohibitions? |
No. |
|
| 24. |
Is the authority to enter into PPPs restricted to the state DOT or state turnpike authority or may regional or local entities also do so? |
Restricted. |
Limited to State DOT and Indiana Finance Authority. |
| 25. |
Does the relevant law specify evaluation criteria for PPP proposals received under a given procurement approach? |
Yes. |
§8-15.7-4-1. The department is required to set forth evaluation criteria in RFQ or RFP. §8-15.5-4-7 sets forth the criteria by which the authority must use when considering an offeror for a PPP agreement for a toll road. |
| 26. |
Does the relevant law specify the structure and participants for the review process involving PPP proposals? |
Yes. |
See Chapter 8-15.5-4 and §8-15.7-4-2. |
| 27. |
Does the relevant law protect the confidentiality of PPP proposals and any related negotiations in the period prior to execution of the PPP agreement? |
Yes. |
§8-15.5-4-6. The authority may, treat as confidential all records relating to discussions or negotiations between the authority and eligible offerors if those records are created while discussions or negotiations are in progress. §8-15.7-4-6. The department may not disclose the contents of proposals during discussions or negotiations with potential offerors. |
| 28. |
Does the relevant law provide for the ability of the public sector to outsource long-term operations and maintenance and other asset management duties to the private sector? |
Yes. |
§8-15.5-6-5. The authority may enter into agreements for maintenance and other services. |
