MDOT Secretary’s Office to Hear Appeal by Consortium Whose I-495/I-270 Bid Fell Short

Traffic on the American Legion Bridge connecting Maryland and Virginia. Photo by Chip Somodevilla/Getty Images.

Updated at 8:20 p.m. 

A consortium that bid unsuccessfully on a lucrative state highway project has signaled it intends to press its case against the Maryland Department of Transportation.

Capital Express Mobility Partners (CEMP) protested the agency’s decision to award the multi-billion dollar I-495/I-270 project to a rival, Accelerate Maryland Partners, in March.

That protest was denied after MDOT’s contracting officer upheld the agency’s process for evaluating the three bids it received.

On Monday, the agency announced that CEMP has formally appealed that decision to Maryland Transportation Secretary Greg Slater.

The move has potentially significant implications for Gov. Lawrence J. Hogan Jr.’s top transportation priority, the widening of portions of the two frequently-congested highways and the replacement of the aging American Legion Bridge.

Hogan is term-limited. He and backers of the controversial project are eager to see it reach a point-of-no-return before leaves office in early 2023.

In their original protest, CEMP accused the winning bidder of “an unfair and unrealistic gaming of [the agency’s] evaluation system.” The consortium said AMP relied on an “unrealistic and low markup percentage [that rendered] its Financial Proposal not compliant” with the instructions provided to would-be bidders.  

AMP, which is led by Australian firms Transurban and Macquarie, dropped its construction partner, Archer Western, late in the procurement process, a move that left the group without a designated construction lead. Nonetheless, their bid to finance and construct “dynamically-priced” toll lanes scored highest.

“That arbitrary and capricious action, unsupported by any competent evidence or market dynamics — as well as the arbitrary decision to permit Transurban and Macquarie Infrastructure Developments to substitute themselves as lead Contractor in place of Archer Western — greatly jeopardizes the Project’s delivery certainty, a fundamental feature of the procurement,” CEMP wrote in their protest.

“This cannot possibly be the best value solution to the State,” they added.

According to documents released by MDOT in response to a Public Information Act request, the CEMP bid received a “technical rating” of “Good+” from the agency’s evaluation team. AMP received a technical rating of “Good.”

But AMP’s “financial score,” 1,356 points, was far superior to the 665 points that CEMP earned or the 800 points earned by a third bidder, AccelerateMaryland Express Partners, a consortium that did not file a protest.

“The Evaluation Committee determined that AMP’s significantly higher financial proposal score outweighed the marginally higher technical rating of CEMP, making the AMP proposal the most advantageous offer to the State and the overall best value,” contracting officer Jeffrey T. Folden wrote in rejecting the protest.

“MDOT’s determination that AMP presented the proposal that was most advantageous to the State was consistent with the requirements of the [Request for Proposals], as well as MDOT’s technical and business judgment,” he added. “CEMP has failed to demonstrate that MDOT’s determination was arbitrary, capricious, unreasonable, or contrary to law, and its protest is denied.”

READ a redacted version of Capital Express Mobility Partners protest.

READ the MDOT contracting officer’s final decision.

CEMP’s appeal of the protest moves the matter to Secretary Slater’s office.

According to the agency’s procurement policy, losing bidders can present oral arguments before the secretary or his designee. They can also call and cross-examine witnesses and present evidence.

The agency reserves the right to proceed with the contract award to AMP despite the loser’s objections, “as long as the MDOT Secretary makes a determination that proceeding without delay is necessary to protect substantial State interests.”

If CEMP loses its appeal to the secretary’s office, they can file suit against the agency.

MDOT said Monday the appeal will be heard by the agency’s Deputy Secretary for Policy, Planning and Enterprise Services.

CEMP’s claim that AMP ‘gamed’ the agency’s scoring system to their benefit appears to reflect a general belief among close observers that Transurban was always the state’s preferred partner.

The transportation behemoth built and owns a sprawling network of “managed lanes” in Northern Virginia, including large portions of the Capital Beltway (I-495) — and the company hopes to handle Virginia’s portion of the American Legion Bridge.

Hogan and Virginia Gov. Ralph S. Northam (D) announced plans to partner on a new bridge in 2019. Despite their announcement, with fanfare, of a “Capital Beltway Accord” 18 months ago, no agreement has been signed.

Hogan’s visit to Sydney in 2019 — a trip that included a tour of Transurban’s West Connex project — fueled speculation that the company was in the driver’s seat. A short time later, a top Hogan aide left the administration to help Transurban coordinate the I-495/I-270 project.

The company noted in an email on Monday that its rivals on the bid — Cintra and Itinera/Halmar — “held the same sponsorship as Transurban as part of the NGA’s infrastructure initiative, including the ‘trade missions,’ and were given the same access to all associated events/travel.”

Hogan made infrastructure his signature issue during his year as NGA chairman.

CEMP — a consortium led by Cintra Global, John Laing Investments Limited and Ferrovial Agroman U.S. Corp. — is represented by former Maryland Attorney General Douglas F. Gansler (D).

Gansler declined to comment on Monday, as did other several other experts on Maryland procurement law who said they had been retained by various parties.

In a statement, MDOT said it “retains full confidence in the comprehensive evaluation process and looks forward to advancing the program to deliver the American Legion Bridge I-270 to I-70 Relief Plan.”

But project backers expressed alarm at the potential for calendar-eating delays.

John B. Townsend II, the director of government and public affairs at AAA Mid-Atlantic, noted the tight timeline Hogan is under to get the project approved before he leaves office.

He accused CEMP of “sour-graping” their defeat and said a drawn-out appeal could add “untold millions” to the project’s final cost.

“They are aligning themselves with the anti-project people and leadership in Montgomery County,” he said. “This is a victory for the nay-sayers and the NIMBYs of Montgomery County.” 

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Editor’s Note: This is an updated version of a breaking news story. 

Bruce DePuyt
Bruce DePuyt spent nearly three decades on local television, including 14 years as executive producer and host of News Talk on NewsChannel 8 in the Washington, D.C., area. He has served as reporter, anchor and producer/host of 21 This Week in Montgomery County and as reporter/anchor at NBC affiliate WVIR-TV in Charlottesville, VA. He's a regular contributor to WTOP (103.5 FM) and frequently moderates community and political events.