In an 11-page supplement, a lawyer for two losing bidders takes MnDOT to task for not releasing data and says the department wanted a concrete bridge from the start.
Two losing bidders for the Interstate 35W bridge contract on Tuesday ramped up their protest of the state's bidding process.
In an 11-page supplement to the original two-page protest filed last week, a lawyer representing C.S. McCrossan and Ames/Lunda accused the Minnesota Department of Transportation of having a predetermined preference for a concrete bridge, of falsely interpreting state law to keep details of the bids concealed and of loosening the deadline for bridge completion in a way that harms taxpayers.
The letter, signed by Minneapolis attorney Dean Thomson, also says that using public relations as one of the factors in choosing a team is not authorized by state statutes. It further says that MnDOT's bid-protest procedure is illegal because it tries to exempt the agency from judicial review.
MnDOT spokesman Kevin Gutknecht said the department "won't speak to the specifics" of the revised protest.
"We're not going to debate it like that," he said. "We'll let the process take its course."
The bidding "was a fair process, it was a thorough process done according to state law and we stand by it," he said.
The protest takes issue with several components of the process, citing in particular a Sept. 5 addendum in which MnDOT placed limits on the damages levied if the project takes longer than the completion date in the contract. Originally, the state said it would collect $200,000 a day for each day the project was late. The addendum limits the number of such days to 135; after that, the state may collect $3,500 a day.
In the protest filed last week, the bidders demanded that MnDOT release information about the technical scores that each team received. On Tuesday, they protested MnDOT's refusal to do so before the contract is signed. Without such data, the letter says, "there can be no effective oversight of MnDOT's procurement decisions."
The letter also says that the department had an "undisclosed demand" for a concrete bridge, but "MnDOT's emphasis on cost and time actually encouraged submission of a structural steel design, and it turned out not to be reliable guidance."
Both Ames/Lunda and McCrossan submitted plans for steel bridges and received lower technical scores for doing so, the letter says. It calls the scoring done by MnDOT's six-member panel "arbitrary and capricious."
Staying on schedule
Flatiron Constructors of Colorado and Manson Construction of Seattle were selected Sept. 19 by using MnDOT's "best-value" formula, which takes into account bridge design, aesthetics and other factors in addition to price and schedule. Flatiron proposed to build the bridge in 437 days at a cost of $234 million, about $57 million more than the bids by McCrossan and Ames/Lunda, which specified timetables of 367 days and 392 days, respectively.
Gutknecht that said the protest would take "a few days to a couple of weeks" to resolve and that MnDOT was still on schedule to try to sign a contract with Flatiron Construction by the end of the month.
Christie DeLuca, a spokeswoman for Flatiron, declined to comment on the new protest documents, saying her firm was focused on building the new bridge.
Also Tuesday, the German firm Hochtief announced that it had agreed to purchase Flatiron from Royal BAM Group of the Netherlands for $240 million.