While MnDOT was chided for cloaking its bid decision, the public good was deemed to outweigh any damage caused to the plaintiffs.
Work gets underway today on the new I-35W bridge that will replace the one that collapsed on Aug. 1. A judge on Wednesday rejected a request for a restraining order that would have stopped work on the new Interstate 35W bridge, but he did criticize the process that was used to select the builder, saying the state "cloaked the decision in secrecy."
Ruling in a suit brought by two taxpayers with ties to the construction industry, Ramsey County District Judge Edward Cleary said that the state's interests in proceeding with the bridge outweighed any damage caused to the plaintiffs.
In their suit, Scott Sayer and Tony Phillippi argued that the Minnesota Department of Transportation used an illegal process to select a team led by Flatiron Constructors of Colorado, and that the process was not in the best interest of the state because Flatiron had the most expensive bid. The suit, which said MnDOT gave Flatiron special considerations, sought to have the contract thrown out.
Flatiron proposed to build the bridge for $234 million, $57 million more than the lowest bid. Instead of a low-bid formula, the state used a best-value formula, which weighed such factors as the bridge's design and aesthetics and the construction team's community outreach efforts.
The plaintiffs' attorney is Dean Thomson, who had represented two construction teams that had failed to win the bridge contract. The teams, Ames/Lunda and C.S. McCrossan, filed a formal protest before the contract was awarded and requested access to the data that led to the selection. MnDOT declined to release the data.
On Oct. 8, the state Department of Administration issued its determination on the protest and recommended that MnDOT proceed with Flatiron. Within hours, the contract was signed.
The Department of Administration also suggested that MnDOT could have released data earlier, and Wednesday's ruling took that into account.
"In the court's opinion, it is unfortunate that MnDOT chose to ignore the advice given to it by its sister agency..." the judge wrote. "By signing a contract with the successful bidder before releasing the underlying data that led to that decision, MnDOT cloaked the decision in secrecy. Instead, MnDOT could have taken the opportunity to explain its decision."
MnDOT issued a statement praising the ruling. Minnesotans "should be very pleased" with the decision because of the bridge's importance to commuters and the economy, said Bob McFarlin, assistant to Transportation Commissioner Carol Molnau. Flatiron has said it expects to finish the bridge by the end of 2008.
Thomson said that if the judge's reading of the statutes was correct, then the statutes should be immediately changed to eliminate the possibility of "intended or unintended favoritisms" in awarding transportation contracts.
Thomson said his clients are considering whether to appeal the ruling or move ahead to the trial phase.
Jim Foti 612-673-4491