MnDOT is standing by its selection process, which took into account factors besides price and gave the contract to the highest bidder.
Two losing bidders for the contract to rebuild the Interstate 35W bridge in Minneapolis filed a protest with the state Thursday over its choice of a construction team from Colorado and Seattle.
The winning team, led by Flatiron Constructors and Manson Construction, had offered the highest cost of any of the four teams and was tied for the longest construction timetable, but it scored high in areas such as design and aesthetics.
The two regional teams filing the protest, C.S. McCrossan and Ames/Lunda, say the Minnesota Department of Transportation "misdirected" them about what the state wanted to replace the bridge, which collapsed on Aug. 1. Each had offered to build the bridge for $50 million less than Flatiron-Manson.
"MnDOT consistently emphasized to both teams MnDOT's desire for a bridge design and approach that would minimize the cost and time of construction," a lawyer for the teams wrote to state officials Thursday.
Kevin Gutknecht, a spokesman for MnDOT, said "We stand by the process we went through to select the best-value bid."
Gutknecht had not seen all the details of the protest, but he said the process "was fair, it was thorough and done according to state law."
The Flatiron proposal calls for building the bridge in 437 days, tied for the longest construction schedule, at a cost of $234 million. McCrossan bid $177 million with a build time of 367 days, while Ames/Lunda bid $178 million and pledged to build the bridge in 392 days.
Technical scores were crucial
The Flatiron team was able to win the bidding process Wednesday because of its high technical score of 91.47. The technical score was based on design elements, bridge aesthetics, site improvements, quality assurance, safety, public relations efforts and other factors.
The McCrossan team received a score of 65.91, while Ames/Lunda scored 55.98.
"Given the outstanding technical capabilities of these two teams, the relatively low technical capability scores that MnDOT gave to each was arbitrary and capricious and not supported by any credible or substantial evidence," said a letter Thursday from Dean B. Thomson, a lawyer representing McCrossan and Ames/Lunda.
Thomson declined to comment on the letter or protest. He is a partner in the Minneapolis law firm of Fabyanske, Westra, Hart & Thomson, which lists the construction industry and commercial litigation among its areas of concentration.
Noting that they and their partners "have built the vast majority of the region's bridges," McCrossan and Ames/Lunda demanded that MnDOT release all of its "scoring, comments and notes" regarding the teams' technical capabilities.
Technical scores for the teams were determined by a six-member panel consisting of four MnDOT employees, a city of Minneapolis representative and a representative of the Associated General Contractors.
The fourth team that submitted a bid was a joint venture of Walsh Construction and American Bridge, which sought to build the bridge in 437 days at a cost of $219 million. A Walsh representative did not return a call seeking comment Thursday.
Molnau will decide protest
In its instructions to bidders on Aug. 23, MnDOT laid out the means by which a proposing team can protest the awarding of a contract.
The team files a protest with a designated "protest official," in this case, Betsy Hayes, a manager in the Department of Administration. Under the rules, Hayes may consider only whether MnDOT's award is "arbitrary, capricious or contrary to law." She will then make a recommendation to Transportation Commissioner Carol Molnau as to whether the award should be reaffirmed or remedied in some way. Molnau will make the final decision.
No timeline for the process is specified.
In submitting their bridge proposals to MnDOT, bidders agreed to follow the protest procedure and waived all rights to other remedies unless the ruling on the protest is "wholly arbitrary."
In their letter, the two construction teams take issue with "MnDOT's restrictive protest procedures," which, they say, are insulated "from effective inquiry, review or oversight."
The federal government has appropriated $250 million for cleanup and replacement, though Minnesota does not yet have most of that money in hand.
Jim Foti 612-673-4491