Introduced Version






HOUSE BILL No. 1589

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 5-3-5; IC 5-16-11.1-4; IC 5-22; IC 5-23-5-3; IC 5-30-5-1; IC 8-17-1-10; IC 36-1-12.

Synopsis: Public works, procurements electronic notice. Allows a political subdivision to provide electronic notice regarding public works projects and procurements by publishing the notice on an official Internet web site instead of in a newspaper. Provides that if a political subdivision does not have an official web site, notices may be published on an official web site of the county government, if: (1) the county government has an official web site that complies with the statutory requirements; and (2) the county agrees to publish the notices electronically. Establishes requirements for the duration of the posting of a legal notice and proof of posting. Establishes requirements regarding availability and accessibility of the official web site. Requires a political subdivision or agency of a political subdivision to publish an advertisement in a newspaper once a week that states the Internet address of the official web site where the notice appears and contains information regarding Internet accessibility.

Effective: July 1, 2013.





Ober, Karickhoff, Friend




    January 23, 2013, read first time and referred to Committee on Government and Regulatory Reform.







Introduced

First Regular Session 118th General Assembly (2013)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2012 Regular Session of the General Assembly.

HOUSE BILL No. 1589



    A BILL FOR AN ACT to amend the Indiana Code concerning state and local administration.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 5-3-5; (13)IN1589.1.1. -->     SECTION 1. IC 5-3-5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]:
     Chapter 5. Electronic Notice by Political Subdivisions
    Sec. 1. This chapter applies only to a political subdivision, as defined in IC 3-5-2-38.
The term includes any administration, agency, authority, board, bureau, commission, committee, council, department, division, institution, office, officer, service, or other similar body of a political subdivision created or established under law.
     Sec. 2. This chapter applies to a notice that is required or allowed to be provided in accordance with this chapter.
     Sec. 3. As used in this chapter, "official web site" means the Internet location designated by a political subdivision as its primary source of information about the political subdivision on the Internet.
     Sec. 4. If a statute expressly allows a political subdivision to

provide notice under this chapter as an alternative to providing notice under IC 5-3-1, the political subdivision shall provide electronic notice in compliance with the following:
        (1) IC 5-3-1-2, regarding the required dates and frequency of publication of notice for the particular event for which notice is provided, unless the statute authorizing the political subdivision to provide electronic notice establishes different requirements, in which case those requirements prevail.
        (2) This chapter.

     Sec. 5. An official web site must prominently display a link to the notices provided under section 4 of this chapter.
     Sec. 6. A political subdivision may provide electronic notice under this chapter only if:
        (1) dial-up access to the Internet is available without telephone toll charges generally throughout the jurisdiction of the political subdivision;
        (2) regular public Internet access is available without charge within the jurisdiction of the political subdivision through the public library or at some other location; and

        (3) the political subdivision publishes a legal advertisement once a week in at least one (1) newspaper of general circulation within the political subdivision announcing that legal notices are posted on a notice web site.
     Sec. 7. (a) The legal advertisement described in section 6(3) of this chapter must be published in the following form:
        "Internet Posting of Public Notices: (name of political subdivision)
        The (name of political subdivision) announces that public notices on the following matters (insert list of synopses of notices posted) are posted on the (name of political subdivision or, if IC 5-3-5-8 applies, name of county) legal notice web site: http://www._____________ (substitute Internet address protocol in common usage if different).
        Free public access to the Internet is available within the (insert name of the political subdivision) at (list all known locations). If you are unable to access the Internet, individual copies of notices can be obtained by calling (insert appropriate phone number of political subdivision or agency).".

     (b) The legal advertisement described in section 6(3) of this chapter must also be published on a newspaper Internet web site if IC 5-3-1-1.5 is applicable.


     Sec. 8. (a) If a political subdivision does not have an official web site, notices of the political subdivision may be published on an official web site of the county government in which the political subdivision is located, if the county government:
        (1) has an official web site that meets the requirements of this chapter; and
        (2) agrees to publish the notices on the county government official web site.
    (b) This subsection applies to a political subdivision that is located in more than one (1) county. A political subdivision that elects to electronically publish notice on an official county web site shall do one (1) of the following:
        (1) If all counties in which the political subdivision is located have official web sites that meet the requirements of this chapter, the political subdivision may electronically publish notice on all the official county web sites.
        (2) If at least one (1) county in which the political subdivision is located has an official web site that meets the requirements of this chapter and any other county in which the political subdivision is located does not have an official web site that meets the requirements of this chapter, the political subdivision may:
            (A) electronically publish notice on one (1) official county web site in a county in which the political subdivision is located that meets the requirements of this chapter; and
            (B) publish in a newspaper the legal advertisement described in section 7 of this chapter.
    (c) This chapter does not require a county to establish or alter an official web site.

     Sec. 9. Notices must remain available on an official web site until at least the later of the following:
        (1) The last posting date required by law has expired.
        (2) The event described in the notice has taken place.

     Sec. 10. (a) The political subdivision shall:
        (1) create; and
        (2) keep on file;
proof of publication of the notice verified by the representative designated under section 11 of this chapter.

     (b) The proof of publication must state that the notice was posted on the official web site from the initial date through the later of the following:
        (1) The last posting date required by law.
        (2) The date when the event described in a notice takes place.
    Sec. 11. The political subdivision shall designate a representative of the political subdivision who is responsible for the publication of electronic notices on the official web site. The representative's name and contact information shall be posted on the official web site.

     Sec. 12. Proof of publication of an electronically published notice for the purpose of complying with public notice requirements is satisfied and considered conclusive upon the provision of the proof of publication described in section 10 of this chapter that:
        (1) is executed by the representative designated as responsible for the electronic publication under section 11 of this chapter; and
        (2) states that the notice was posted from the initial date until the last posting date required by law.

     Sec. 13. IC 5-3-1-2.3 and any other provision regarding an error or omission in a notice published in a newspaper also apply to the provision of an electronic notice under this chapter.
SOURCE: IC 5-16-11.1-4; (13)IN1589.1.2. -->     SECTION 2. IC 5-16-11.1-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) When professional services are required for a project, a public agency may:
        (1) publish notice in accordance with IC 5-3-1;
         (2) publish electronic notice under IC 5-3-5;
        (2) (3) provide for notice (other than notice in accordance with IC 5-3-1 or IC 5-3-5) as it determines is reasonably calculated to inform those performing professional services of a proposed project;
        (3) (4) provide for notice in accordance with both any combination of subdivisions (1) and (2); through (3); or
        (4) (5) determine not to provide any notice.
    (b) If the public agency provides for notice under subsection (a)(1), (a)(2), or (a)(3), or (a)(4), each notice must include:
        (1) the location of the project;
        (2) a general description of the project;
        (3) the general criteria to be used in selecting professional services firms for the project;
        (4) the place where any additional project description or specifications are on file;
        (5) the hours of business of the public agency; and
        (6) the last date for accepting statements of qualifications from interested parties.
SOURCE: IC 5-22-5-5; (13)IN1589.1.3. -->     SECTION 3. IC 5-22-5-5 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) The procedure described in this section may be used by a purchasing agent when both of the following are satisfied:
        (1) The purchasing agent makes a written determination that the development of specifications by the governmental body is not feasible.
        (2) The executive of the governmental body approves of the use of this section.
    (b) The purchasing agent may issue a request for specifications that must include the following:
        (1) The factors or criteria that will be used in evaluating the specifications.
        (2) A statement concerning the relative importance of evaluation factors.
        (3) A statement concerning whether discussions may be conducted with persons proposing specifications to clarify the specification requirements.
    (c) The purchasing agent of a state agency shall give notice of the request for specifications under IC 5-3-1. The purchasing agent of a political subdivision shall give notice of the request for specifications by publication under IC 5-3-1 or by electronic notice under IC 5-3-5.
    (d) As provided in the request for specifications, the purchasing agent may discuss proposed specifications with persons proposing specifications to clarify specification requirements.
    (e) Persons proposing specifications must be accorded fair and equal treatment with respect to any opportunity for discussion and revisions of proposed specifications.
SOURCE: IC 5-22-7-5; (13)IN1589.1.4. -->     SECTION 4. IC 5-22-7-5, AS AMENDED BY P.L.177-2005, SECTION 22, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) The purchasing agency for a state agency shall give notice of the invitation for bids in the manner required by IC 5-3-1
    (b) The purchasing agency for a state agency and shall also provide electronic access to the notice through the computer gateway administered by the office of technology.
    (c) (b) The purchasing agency for a political subdivision may give notice of the invitation for bids by:
         (1) publication under IC 5-3-1; or
         (2) also provide providing electronic access to the notice under IC 5-3-5 through:
            (1) (A) the computer gateway administered by the office of technology; or
            (2) (B) any other electronic means available to the political subdivision that meets the requirements of IC 5-3-5.
SOURCE: IC 5-22-9-3; (13)IN1589.1.5. -->     SECTION 5. IC 5-22-9-3, AS AMENDED BY P.L.177-2005, SECTION 23, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 3. (a) The purchasing agency for a state agency shall give public notice of the request for proposals in the manner required by IC 5-3-1 and
    (b) The purchasing agency for a state agency shall also provide electronic access to the notice through the computer gateway administered by the office of technology.
    (c) (b) The purchasing agency for a political subdivision may give notice of the request for proposals by:
        (1) publication under IC 5-3-1; or
        (2)
also provide providing electronic access to the notice under IC 5-3-5 through:
             (A) the electronic gateway administered by the office of technology; or
             (B) any other electronic means available to the political subdivision that meets the requirements of IC 5-3-5.
SOURCE: IC 5-22-10-16; (13)IN1589.1.6. -->     SECTION 6. IC 5-22-10-16 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 16. (a) A purchasing agent may acquire supplies if the purchasing agent determines that the governmental body can obtain the transfer of the supplies from the federal government under IC 4-13-1.7 at a cost less than would be obtained from purchase of the supplies by soliciting for bids or proposals.
    (b) A governmental body may not make a purchase under this section if title to the property will be transferred to the governmental body before a sufficient appropriation to pay the costs of the purchase is appropriated. However, if the supplies will be transferred to the governmental body upon conditional sale or under a lease, a lease with option to purchase, or a contract for the use of the supplies, the governmental body may make the purchase under this section if there are sufficient funds appropriated to pay the consideration required for one (1) year of the agreement.
    (c) A purchasing agent for a state agency who purchases or leases surplus federal materials shall, at the time of the purchase or lease, or immediately thereafter, give public notice in accordance with IC 5-3-1.
     (d) A purchasing agent for a political subdivision who purchases or leases surplus federal materials shall, at the time of the purchase

or lease, or immediately thereafter, provide:
        (1) notice by publication in accordance with IC 5-3-1; or

         (2) electronic notice under IC 5-3-5.

SOURCE: IC 5-22-18-1; (13)IN1589.1.7. -->     SECTION 7. IC 5-22-18-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 1. (a) Whenever public notice is required by this article, notice shall be given as follows:
        (1) In the case of a purchasing agent of a state agency,
by publication in the manner prescribed by IC 5-3-1.
        
(2) In the case of a purchasing agency of a political subdivision by:
            (A) publication in the manner prescribed by IC 5-3-1; or
            (B) providing electronic notice under IC 5-3-5.

    (b) The purchasing agent may give notice other than as required in IC 5-3-1 that the purchasing agent considers will increase competition.
    (c) The purchasing agent shall schedule all notices given under this section to provide a reasonable amount of time for preparation and submission of responses after notification. The period between:
        (1) the last publication, mailing, or posting of notices required by this section; and
        (2) the final date set for submitting offers;
must be at least seven (7) calendar days.
SOURCE: IC 5-23-5-3; (13)IN1589.1.8. -->     SECTION 8. IC 5-23-5-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 3. (a) This subsection applies only to the state. Notice of the request for proposals shall be given by publication in accordance with IC 5-3-1.
     (b) This subsection applies only to a political subdivision. Notice of the request for proposals shall be given by:
        (1) publication in accordance with IC 5-3-1; or
        (2) electronic notice in accordance with IC 5-3-5.

SOURCE: IC 5-30-5-1; (13)IN1589.1.9. -->     SECTION 9. IC 5-30-5-1, AS AMENDED BY P.L.166-2011, SECTION 7, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 1. (a) Except as provided in subsection (c), when design-build contracting is used for a public project, a public agency shall publish a provide notice of a request for qualifications as follows:
         (1) A state agency shall provide notice by publication under IC 5-3-1.
         (2) An agency of a political subdivision shall provide notice by:
            (A) publication in accordance with IC 5-3-1; or
            (B) electronic notice in accordance with IC 5-3-5.

The notice must allow at least fourteen (14) days for potential

design-builders to respond to the request for qualifications.
    (b) Subsection (c) applies to a public project for which a public agency uses design-build contracting if:
        (1) the public agency is a state educational institution; or
        (2) the public agency is not a state educational institution and the preliminary estimated cost of the public project does not exceed five million dollars ($5,000,000).
    (c) A public agency that undertakes a public project to which this subsection applies may publish a notice of a combined request for qualifications and proposals under IC 5-3-1 in the manner provided by subsection (a)(1) in the case of a state agency, and in the manner provided by subsection (a)(2) in the case of an agency of a political subdivision that includes:
        (1) the information otherwise required by this chapter; and
        (2) a request for proposals as otherwise provided under IC 5-30-6.
The notice must allow at least thirty (30) days for potential design-builders to respond to the combined request for qualifications and proposals.

SOURCE: IC 8-17-1-10; (13)IN1589.1.10. -->     SECTION 10. IC 8-17-1-10 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 10. When any highway or part of a highway is constructed, reconstructed, or improved, the county executive shall order the auditor to give notice:
         (1) by publication, in accordance with IC 5-3-1; or
        (2) by electronic notice in accordance with IC 5-3-5;

that, on a day to be named by the executive in an order, sealed proposals will be received by the executive for the improvement in accordance with IC 36-1-12. However, if the proposed improvement includes any bridge having a total span of more than twenty (20) feet, the executive shall receive separate bids for the bridge, and shall enter into a separate contract to build the bridge.
SOURCE: IC 36-1-12-3; (13)IN1589.1.11. -->     SECTION 11. IC 36-1-12-3, AS AMENDED BY P.L.172-2011, SECTION 138, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 3. (a) The board may purchase or lease materials in the manner provided in IC 5-22 and perform any public work, by means of its own workforce, without awarding a contract whenever the cost of that public work project is estimated to be less than one hundred fifty thousand dollars ($150,000). Before a board may perform any work under this section by means of its own workforce, the political subdivision or agency must have a group of employees on its staff who are capable of performing the construction, maintenance, and repair applicable to that work. For purposes of this subsection, the cost of a public work project includes:
        (1) the actual cost of materials, labor, equipment, and rental;
        (2) a reasonable rate for use of trucks and heavy equipment owned; and
        (3) all other expenses incidental to the performance of the project.
    (b) This subsection applies only to a municipality or a county. The workforce of a municipality or county may perform a public work described in subsection (a) only if:
        (1) the workforce, through demonstrated skills, training, or expertise, is capable of performing the public work; and
        (2) for a public work project under subsection (a) whose cost is estimated to be more than one hundred thousand dollars ($100,000), the board:
            (A) publishes a notice under IC 5-3-1 or provides electronic notice under IC 5-3-5 that:
                (i) describes the public work that the board intends to perform with its own workforce; and
                (ii) sets forth the projected cost of each component of the public work as described in subsection (a); and
            (B) determines at a public meeting that it is in the public interest to perform the public work with the board's own workforce.
A public work project performed by a board's own workforce must be inspected and accepted as complete in the same manner as a public work project performed under a contract awarded after receiving bids.
    (c) When the project involves the rental of equipment with an operator furnished by the owner, or the installation or application of materials by the supplier of the materials, the project is considered to be a public work project and subject to this chapter. However, an annual contract may be awarded for equipment rental and materials to be installed or applied during a calendar or fiscal year if the proposed project or projects are described in the bid specifications.
    (d) A board of aviation commissioners or an airport authority board may purchase or lease materials in the manner provided in IC 5-22 and perform any public work by means of its own workforce and owned or leased equipment, in the construction, maintenance, and repair of any airport roadway, runway, taxiway, or aircraft parking apron whenever the cost of that public work project is estimated to be less than one hundred thousand dollars ($100,000).
    (e) Municipal and county hospitals must comply with this chapter for all contracts for public work that are financed in whole or in part with cumulative building fund revenue, as provided in section 1(c) of this chapter. However, if the cost of the public work is estimated to be

less than fifty thousand dollars ($50,000), as reflected in the board minutes, the hospital board may have the public work done without receiving bids, by purchasing the materials and performing the work by means of its own workforce and owned or leased equipment.
    (f) If a public works project involves a structure, an improvement, or a facility under the control of a department (as defined in IC 4-3-19-2(2)), the department may not artificially divide the project to bring any part of the project under this section.

SOURCE: IC 36-1-12-4; (13)IN1589.1.12. -->     SECTION 12. IC 36-1-12-4, AS AMENDED BY P.L.67-2012, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) This section applies whenever the cost of a public work project will be:
        (1) except as provided in subdivision (2), at least one hundred fifty thousand dollars ($150,000); or
        (2) in the case of a board of aviation commissioners or an airport authority board, at least one hundred thousand dollars ($100,000).
    (b) The board must comply with the following procedure:
        (1) The board shall prepare general plans and specifications describing the kind of public work required, but shall avoid specifications which might unduly limit competition. If the project involves the resurfacing (as defined by IC 8-14-2-1) of a road, street, or bridge, the specifications must show how the weight or volume of the materials will be accurately measured and verified.
        (2) The board shall file the plans and specifications in a place reasonably accessible to the public, which shall be specified in the notice required by subdivision (3).
        (3) Upon the filing of the plans and specifications, the board shall publish notice in accordance with IC 5-3-1 or provide electronic notice under IC 5-3-5 calling for sealed proposals for the public work needed.
        (4) The notice must specify the place where the plans and specifications are on file and the date fixed for receiving bids.
        (5) The period of time between the date of the first publication and the date of receiving bids shall be governed by the size of the contemplated project in the discretion of the board. The period of time between the date of the first publication and receiving bids may not be more than:
            (A) six (6) weeks if the estimated cost of the public works project is less than twenty-five million dollars ($25,000,000); and
            (B) ten (10) weeks if the estimated cost of the public works

project is at least twenty-five million dollars ($25,000,000).
        (6) The board shall require the bidder to submit a financial statement, a statement of experience, a proposed plan or plans for performing the public work, and the equipment that the bidder has available for the performance of the public work. The statement shall be submitted on forms prescribed by the state board of accounts.
        (7) The board may not require a bidder to submit a bid before the meeting at which bids are to be received. The meeting for receiving bids must be open to the public. All bids received shall be opened publicly and read aloud at the time and place designated and not before. Notwithstanding any other law, bids may be opened after the time designated if both of the following apply:
            (A) The board makes a written determination that it is in the best interest of the board to delay the opening.
            (B) The day, time, and place of the rescheduled opening are announced at the day, time, and place of the originally scheduled opening.
        (8) Except as provided in subsection (c), the board shall:
            (A) award the contract for public work or improvements to the lowest responsible and responsive bidder; or
            (B) reject all bids submitted.
        (9) If the board awards the contract to a bidder other than the lowest bidder, the board must state in the minutes or memoranda, at the time the award is made, the factors used to determine which bidder is the lowest responsible and responsive bidder and to justify the award. The board shall keep a copy of the minutes or memoranda available for public inspection.
        (10) In determining whether a bidder is responsive, the board may consider the following factors:
            (A) Whether the bidder has submitted a bid or quote that conforms in all material respects to the specifications.
            (B) Whether the bidder has submitted a bid that complies specifically with the invitation to bid and the instructions to bidders.
            (C) Whether the bidder has complied with all applicable statutes, ordinances, resolutions, or rules pertaining to the award of a public contract.
        (11) In determining whether a bidder is a responsible bidder, the board may consider the following factors:
            (A) The ability and capacity of the bidder to perform the work.


            (B) The integrity, character, and reputation of the bidder.
            (C) The competence and experience of the bidder.
        (12) The board shall require the bidder to submit an affidavit:
            (A) that the bidder has not entered into a combination or agreement:
                (i) relative to the price to be bid by a person;
                (ii) to prevent a person from bidding; or
                (iii) to induce a person to refrain from bidding; and
            (B) that the bidder's bid is made without reference to any other bid.
    (c) Notwithstanding subsection (b)(8), a county may award sand, gravel, asphalt paving materials, or crushed stone contracts to more than one (1) responsible and responsive bidder if the specifications allow for bids to be based upon service to specific geographic areas and the contracts are awarded by geographic area. The geographic areas do not need to be described in the specifications.