Lawyers for the Maryland Department of Transportation and a losing bidder on the Interstate 495/I-270 toll lanes project tangled before a Maryland appeals court Monday. At issue: whether the bidder, Capital Express Mobility Partners (CEMP), waited too long to file a protest against the agency.
The issue, while narrow, ties directly to a broader dispute that may determine the fate of Gov. Larry Hogan’s controversial bid to bring variably-priced toll lanes to the Capital Beltway and Interstate 270.
If the Madrid-based consortium can convince the Court of Special Appeals that it filed its protest against the agency in a timely manner, it could pursue it’s broader claim — that MDOT erred when it awarded a potentially lucrative design contract to a group led by the toll road operator Transurban.
That case is set to to go trial next month in Montgomery County Circuit Court.
On Monday, Capital Express Mobility Partner’s lead attorney, former Maryland Attorney General Doug Gansler, sought to convince the court that his client’s protest, which came after the agency made its selection, fell squarely within the “clear and unambiguous” provisions of state law. For the agency to choose the Transurban-backed Accelerate Maryland Partners, the only bidder not to have a construction company in its ranks, was to violate its duty to the public, he added.
Assistant Attorney General Lydia Hoover defended MDOT. She said that if CEMP objected to the rules of the procurement, it should have protested months earlier, when the rules were set. “Because it didn’t, it waived its rights to protest,” she said.
Hoover claimed that bid protests that follow the debriefing offered to losing bidders can only be based on information provided at the briefing. When Judge Christoper Kehoe asked where that provision can be found in the law, Hoover acknowledged that “it doesn’t say it specifically, your honor, and our argument is that it must be read as implicit…”
A three-judge panel listened to the two sides argue for just over an hour. Presiding Judge Terrence Zic then asked for additional briefings to be filed over the next seven weeks, guaranteeing that the case will continue for at least two more months. Hogan, who leaves office in January, is pressing to get a multi-billion construction contract to the Board of Public Works before his term ends.
Gansler noted that AM Partners waited 18 months, until the week before the hearing, to replace Archer Western, its original construction partner. He called the new road builder, Los Angeles-based construction giant Tutor Perini. “They just picked somebody last week that has a history of problems… as the lead contractor,” he said.
Asked by the court what CEMP hopes to gain from its protest, he said the agency could be ordered to conduct a fresh review of the bids it received or it could be ordered to pay financial damages to his client. Gansler also floated the idea that MDOT could “weld the two consortiums together.”
“They could figure it out,” he said.
Hoover defended the decision to go with the Transurban-backed group, as its financial score was deemed the best. CEMP had the highest “technical score.” Gansler charged that the winning bidder used unrealistically low profit margins to undercut its rivals.
He claimed that CEMP’s protest of the award to AM Partners marked the first time in its 90 years of doing business that it has take such action. “They’ve never filed a bid protest before because they’ve never seen anything as egregious… as here.”