CHAPTER 15. PURCHASING PREFERENCES
IC 5-22-15
Chapter 15. Purchasing Preferences
IC 5-22-15-1
Applicability of chapter
Sec. 1. This chapter applies to the following:
(1) A purchase of supplies under this article by any of the
following:
(A) A governmental body.
(B) A state educational institution.
(C) An instrumentality of the state that performs essential
governmental functions on either a statewide or local basis.
(D) The state lottery commission created by IC 4-30-3-1.
(2) A purchase made under IC 5-17-1.
(3) An offer to conduct an indoor air quality inspection and
evaluation program under IC 16-41-37.5.
As added by P.L.49-1997, SEC.1. Amended by P.L.79-2008, SEC.1.
IC 5-22-15-2
"Absolute preference" defined
Sec. 2. As used in this chapter, "absolute preference" means a
requirement that a governmental body must purchase supplies
described under this chapter, regardless of price.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-3
"Adjusted offer" defined
Sec. 3. As used in this chapter, "adjusted offer" means the offer
price of an offeror for:
(1) preferred supplies; or
(2) conducting an indoor air quality inspection and evaluation
program under IC 16-41-37.5;
as determined under section 10 of this chapter.
As added by P.L.49-1997, SEC.1. Amended by P.L.79-2008, SEC.2.
IC 5-22-15-4
"Preferred supplies" defined
Sec. 4. As used in this chapter, "preferred supplies" means
supplies that are given a preference under this chapter.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-5
"Price preference percentage" defined
Sec. 5. As used in this chapter, "price preference percentage"
means the percentage preference provided by this chapter for either
of the following:
(1) A specified kind or item of supplies.
(2) An offer to conduct an indoor air quality inspection and
evaluation program under IC 16-41-37.5.
As added by P.L.49-1997, SEC.1. Amended by P.L.79-2008, SEC.3.
IC 5-22-15-6
"Total adjusted offer" defined
Sec. 6. As used in this chapter, "total adjusted offer" means the
sum of the offers and adjusted offers of an offeror for each item of
supplies.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-7
Allowable preferences; limitations
Sec. 7. (a) An offeror may claim one (1) of the following types of
preference for which the offeror is eligible:
(1) An Indiana business preference under rules adopted under
section 20 of this chapter or IC 4-13.6-6-2.5.
(2) A preference for supplies as provided by sections 16, 18, 19,
and 24 of this chapter.
(3) An Indiana small business preference as provided by section
23 of this chapter.
(b) An offeror may not claim more than one (1) preference as
provided by sections 16, 18, 19, and 24 of this chapter for a given
supply item.
(c) This section does not:
(1) apply to; or
(2) limit;
action of the Indiana department of administration under rules
adopted under section 21 of this chapter.
As added by P.L.49-1997, SEC.1. Amended by P.L.153-1999, SEC.2;
P.L.209-2001, SEC.1.
IC 5-22-15-8
Offer must indicate preferred supply or service
Sec. 8. (a) An offeror who wants to claim a preference provided
under this chapter for a given supply item must indicate in the offer
what supply item in the offer is a preferred supply.
(b) An offeror who wants to claim a preference provided under
this chapter to conduct an indoor air quality inspection and
evaluation program under IC 16-41-37.5 must indicate in the offer
that the indoor air quality inspection and evaluation program is
subject to a price preference.
As added by P.L.49-1997, SEC.1. Amended by P.L.79-2008, SEC.4.
IC 5-22-15-9
Certification that supply meets required qualifications
Sec. 9. A purchasing agent may require an offeror who claims a
preference for a given supply item under section 8 of this chapter to
certify that the supply offered meets the qualifications set for
preferred supplies under this chapter.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-10
Computation of adjusted offer; formula
Sec. 10. (a) This section does not apply to an absolute preference.
(b) If an offeror offers a preferred supply for a given supply item,
the purchasing agent shall compute an adjusted offer for that item
according to the following formula:
STEP ONE: Determine the price preference percentage for the
supply item under this chapter.
STEP TWO: Multiply the offeror's offer for the supply item by
the percentage determined under STEP ONE.
STEP THREE: Subtract the number determined under STEP
TWO from the offeror's offer for the supply item.
(c) If an offeror offers to conduct an indoor air quality inspection
and evaluation program under IC 16-41-37.5, the purchasing agent
shall compute an adjusted offer to conduct that indoor air quality
inspection and evaluation program according to the following
formula:
STEP ONE: Determine the price preference percentage for the
indoor air quality inspection and evaluation program eligible to
an offeror under section 20.7 of this chapter.
STEP TWO: Multiply the offeror's offer for the indoor air
quality inspection and evaluation program by the percentage
determined under STEP ONE.
STEP THREE: Subtract the number determined under STEP
TWO from the offeror's offer to conduct the indoor air quality
inspection and evaluation program.
As added by P.L.49-1997, SEC.1. Amended by P.L.79-2008, SEC.5.
IC 5-22-15-11
Award to offeror with lowest total adjusted offer
Sec. 11. Notwithstanding any statute requiring the award of a
contract to the lowest offeror, but subject to section 12 of this
chapter, a purchasing agent shall award a contract to the offeror
whose total adjusted offer is lower than the total adjusted offer of
each other offeror.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-12
Award of contract; requirements
Sec. 12. Award of a contract under section 11 of this chapter is
subject to the following:
(1) A requirement of an applicable statute to award a contract
to a responsible and responsive bidder.
(2) A requirement of an applicable statute to award a contract:
(A) to the best bidder; or
(B) in the case of a purchase under IC 5-22-9, to the offeror
whose offer is most advantageous to the governmental body.
(3) The authority of the purchasing agent under IC 5-22-17-12
to award contracts separately or for a combination of a line or
class of supplies.
As added by P.L.49-1997, SEC.1. Amended by P.L.7-1998, SEC.6.
IC 5-22-15-13
Contracts awarded separately; combination of line or class of
supplies
Sec. 13. If a purchasing agent awards contracts separately, or for
a combination of a line or class of supplies under an applicable law,
the purchasing agent shall compute total adjusted offers and award
contracts as if each combination of lines or classes of supplies to be
awarded a contract had been solicited separately.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-14
Price
Sec. 14. The price paid for preferred supplies purchased under a
contract awarded under this chapter shall be the price offered for the
supplies and not the adjusted offer price of the supplies.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-15
Rules
Sec. 15. A governmental body may adopt rules to implement this
chapter.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-16
Price preference for supplies that contain recycled or
post-consumer materials
Sec. 16. (a) This section does not apply when the purchase
description is limited to a supply that meets the description set forth
in subsection (b).
(b) There is a price preference for supplies that contain recycled
materials or post-consumer materials.
(c) The amount of the price preference and the recycled materials'
composition of the supplies must be set by one (1) of the following:
(1) Rules adopted by the governmental body.
(2) Policies established by the purchasing agency.
(3) The solicitation.
The preference shall be set to maximize the use of recycled materials
when economically practical.
(d) A price preference set under subsection (c) may not be less
than ten percent (10%) or exceed fifteen percent (15%).
As added by P.L.49-1997, SEC.1. Amended by P.L.153-1999, SEC.3.
IC 5-22-15-17
Repealed
(Repealed by P.L.153-1999, SEC.6.)
IC 5-22-15-18
Price preference for soybean oil based ink
Sec. 18. (a) Notwithstanding section 1 of this chapter, this section
does not apply to a purchase of supplies by any of the following:
(1) A political subdivision.
(2) A state educational institution.
(b) This section does not apply when the purchase description is
limited to soybean oil based ink.
(c) There is a price preference of ten percent (10%) for soybean
oil based ink.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-19
Price preference for soy diesel/bio diesel
Sec. 19. (a) This section does not apply when the purchase
description is limited to a fuel of which at least twenty percent (20%)
by volume is soy diesel/bio diesel.
(b) As used in this section, "soy diesel/bio diesel" includes fuels
(other than alcohol) that are primarily esters derived from biological
materials, including oilseeds and animal fats, for use in compression
and ignition engines.
(c) There is a price preference of ten percent (10%) for soy
diesel/bio diesel.
(d) The price preference under this section applies to a purchase
of fuel of which at least twenty percent (20%) by volume is soy
diesel/bio diesel.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-20
Preferences to Indiana businesses; rules
Sec. 20. (a) This section does not apply to the state lottery
commission created by IC 4-30-3-1.
(b) As used in this section, "out-of-state business" refers to a
business that is not an Indiana business.
(c) A governmental body may adopt rules to give a preference to
an Indiana business that submits an offer for a purchase under this
article if all of the following apply:
(1) An out-of-state business submits an offer for the purchase.
(2) The out-of-state business is a business from a state that
gives purchase preferences unfavorable to Indiana businesses.
(d) Rules adopted under subsection (c) must establish criteria for
determining the following:
(1) Whether an offeror qualifies as an Indiana business under
the rules.
(2) When another state's preference is unfavorable to Indiana
businesses.
(3) The method by which the preference for Indiana businesses
is to be computed.
(e) Rules adopted under subsection (c) may not give a preference
to an Indiana business that is more favorable to the Indiana business
than the other state's preference is to the other state's businesses.
(f) Rules adopted under subsection (c) must provide that a
contract shall be awarded to the lowest responsive and responsible
offeror, regardless of the preference provided under this section, if:
(1) the offeror is an Indiana business; or
(2) the offeror is a business from a state bordering Indiana and
the offeror's home state does not provide a preference to the
home state's businesses more favorable than is provided by
Indiana law to Indiana businesses.
As added by P.L.49-1997, SEC.1. Amended by P.L.66-2004, SEC.3.
IC 5-22-15-20.5
"Indiana business"; criteria; price preferences; awarding of
contracts; exception
Sec. 20.5. (a) This section applies only to a contract awarded by
a state agency.
(b) As used in this section, "Indiana business" refers to any of the
following:
(1) A business whose principal place of business is located in
Indiana.
(2) A business that pays a majority of its payroll (in dollar
volume) to residents of Indiana.
(3) A business that employs Indiana residents as a majority of
its employees.
(4) A business that makes significant capital investments in
Indiana.
(5) A business that has a substantial positive economic impact
on Indiana as defined by criteria developed under subsection
(c).
(c) The Indiana department of administration shall consult with
the Indiana economic development corporation in developing criteria
for determining whether a business is an Indiana business under
subsection (b). The Indiana department of administration may
consult with the Indiana economic development corporation to
determine whether a particular business meets the requirements of
this section and the criteria developed under this subsection.
(d) There are the following price preferences for supplies
purchased from an Indiana business:
(1) Five percent (5%) for a purchase expected by the state
agency to be less than five hundred thousand dollars
($500,000).
(2) Three percent (3%) for a purchase expected by the state
agency to be at least five hundred thousand dollars ($500,000)
but less than one million dollars ($1,000,000).
(3) One percent (1%) for a purchase expected by the state
agency to be at least one million dollars ($1,000,000).
(e) Notwithstanding subsection (d), a state agency shall award a
contract to the lowest responsive and responsible offeror, regardless
of the preference provided in this section, if:
(1) the offeror is an Indiana business; or
(2) the offeror is a business from a state bordering Indiana and
the business's home state does not provide a preference to the
home state's businesses more favorable than is provided by
Indiana law to Indiana businesses.
(f) A business that wants to claim a preference provided under this
section must do all of the following:
(1) State in the business's bid that the business claims the
preference provided by this section.
(2) Provide the following information to the department:
(A) The location of the business's principal place of
business. If the business claims the preference as an Indiana
business described in subsection (b)(1), a statement
explaining the reasons the business considers the location
named as the business's principal place of business.
(B) The amount of the business's total payroll and the
amount of the business's payroll paid to Indiana residents.
(C) The number of the business's employees and the number
of the business's employees who are Indiana residents.
(D) If the business claims the preference as an Indiana
business described in subsection (b)(4), a description of the
capital investments made in Indiana and a statement of the
amount of those capital investments.
(E) If the business claims the preference as an Indiana
business described in subsection (b)(5), a description of the
substantial positive economic impact the business has on
Indiana.
As added by P.L.66-2004, SEC.4. Amended by P.L.4-2005, SEC.33;
P.L.123-2009, SEC.1.
IC 5-22-15-20.7
Price preference for indoor air quality inspection and evaluation
program
Sec. 20.7. (a) As used in this section, "Indiana business" has the
meaning set forth in section 20.5 of this chapter.
(b) There is a price preference of ten percent (10%) for an Indiana
business that submits an offer to conduct an indoor air quality
inspection and evaluation program under IC 16-41-37.5.
As added by P.L.79-2008, SEC.6.
IC 5-22-15-21
Promotion of purchase of supplies manufactured in the United
States; rules
Sec. 21. (a) This section does not apply to the state lottery
commission created by IC 4-30-3-1.
(b) A governmental body shall adopt rules to promote the
purchase of supplies manufactured in the United States.
(c) Rules adopted under subsection (b) shall provide that supplies
manufactured in the United States shall be specified and purchased
unless the governmental body determines that any of the following
apply:
(1) The supplies are not manufactured in the United States in
reasonably available quantities.
(2) The price of the supplies manufactured in the United States
exceeds by an unreasonable amount the price of available and
comparable supplies manufactured outside the United States.
(3) The quality of the supplies is substantially less than the
quality of comparably priced available supplies manufactured
outside the United States.
(4) The purchase of supplies manufactured in the United States
is not in the public interest.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-22
Absolute preference to coal mined in Indiana
Sec. 22. (a) This section does not apply to the state lottery
commission created by IC 4-30-3-1.
(b) This section does not apply if federal law requires the use of
low sulphur coal in the circumstances for which the coal is
purchased.
(c) Whenever a purchasing agent purchases coal for use as fuel,
the purchasing agent shall give an absolute preference to coal mined
in Indiana.
As added by P.L.49-1997, SEC.1.
IC 5-22-15-23
Price preference for supplies to Indiana small business
Sec. 23. (a) A governmental body shall give a fifteen percent
(15%) preference for supplies to an Indiana small business (as
defined in IC 5-22-14-1) that submits an offer for purchase under this
article.
(b) The governmental body may adopt rules to establish criteria
to carry out this section.
As added by P.L.153-1999, SEC.4.
IC 5-22-15-24
Purchasing agents for government entities to give high calcium
foods preference
Sec. 24. (a) This section applies in addition to any requirements
placed upon a governmental entity by the United States Department
of Agriculture under the National School Lunch Program or the
School Breakfast Program.
(b) This section applies to:
(1) a governmental entity listed in section 1 of this chapter; or
(2) a business that contracts with a governmental entity listed in
section 1 of this chapter;
that purchases food or beverages to be processed and served in a
building or room owned or operated by the governmental entity.
(c) High calcium foods and beverages are preferred supplies. A
purchasing agent shall give a preference to foods and beverages that:
(1) contain a higher level of calcium than products of the same
type and quality; and
(2) are equal in price to or lower in price than products of the
same type and quality.
(d) Notwithstanding subsection (c), if the director of a state
institution (as defined in IC 12-7-2-184) determines that a high
calcium food or beverage that is preferred under subsection (c)
would interfere with the proper treatment and care of a patient of the
state institution, the purchasing agent for the state institution is not
required to purchase the high calcium food or beverage for that
patient.
As added by P.L.209-2001, SEC.2.
IC 5-22-15-24.2
Forced labor; supplies prohibition
Sec. 24.2. (a) As used in this section, "forced labor" has the
meaning set forth in 19 U.S.C. 1307.
(b) If an offeror offers to furnish supplies made in a country other
than the United States, a governmental body may not award a
contract to the offeror for those supplies if the supplies were made
using forced labor.
(c) A governmental body shall inform offerors in the solicitation
of the provisions of this section.
As added by P.L.194-2001, SEC.1.
IC 5-22-15-25
Steel products
Sec. 25. (a) As used in this section, "steel products" means
products rolled, formed, shaped, drawn, extruded, forged, cast,
fabricated, or otherwise similarly processed, or processed by a
combination of two (2) or more such operations, by the open hearth,
basic oxygen, electric furnace, Bessemer, or other steel making
process.
(b) As used in this section, "United States" includes all territory,
continental or insular, subject to the jurisdiction of the United States.
(c) Unless the head of the purchasing agency makes a written
determination described in subsection (d), a solicitation must require
that if any steel products are used in:
(1) the manufacture of the supplies required under the contract;
or
(2) supplies used in the performance of the services under the
contract by the contractor or a subcontractor of the contractor;
the steel products must be manufactured in the United States.
(d) Subsection (c) does not apply if the:
(1) head of the purchasing agency determines in writing that:
(A) the cost of the contract with the requirements of
subsection (c) would be greater than one hundred fifteen
percent (115%) of the cost of the contract without the
requirements of subsection (c); and
(B) failure to impose the requirements of subsection (c)
would not in any way:
(i) harm the business of a facility that manufactures steel
products in Indiana; or
(ii) result in the reduction of employment or wages and
benefits of employees of a facility described in item (i); or
(2) purchase is:
(A) less than ten thousand dollars ($10,000); and
(B) made under the small purchase policies (as described in
IC 5-22-8-2(b)) established by the purchasing agency or
under rules adopted by the governmental body.
(e) A purchasing agency shall inform offerors in the solicitation
of the provisions of this section.
As added by P.L.194-2001, SEC.2.