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MDOT had to reconsider the protest after a Montgomery County Circuit Court judge ruled in February that the agency wrongly dismissed three of the four allegations for being filed too late. The judge asked MDOT to reconsider the claims on their merits, including whether the winning bid had assumed unrealistic construction costs that could result in massive construction delays and cost overruns.
A protracted legal battle would complicate Republican Maryland Gov. Larry Hogan’s traffic relief plan in the months before he leaves.
In its latest ruling, MDOT again said it had correctly awarded the contract, known as the pre-development agreement, last year to a team led by the Australian toll road operator. Transurban and Australian investment bank Macquarie.
Assistant Secretary of Transportation R. Earl Lewis Jr. wrote that the state correctly selected the proposal with the best overall value. The losing bid team, led by Spanish firm Cintra, had failed to prove that the bid selection process was biased, “arbitrary”, “capricious” or “unreasonable”, as demanded by Lewis.
Lewis said the state allowed bid teams to decide how much to allow for construction company profit margins and overhead based on the financial risk they wanted to take on.
“The fact that [the Cintra bid team] made a different choice, had a different risk tolerance, or even understood the [bid requirements] differently from [the winning proposer] does not make [the winning team’s] inappropriate proposal,” Lewis wrote.
As part of the pre-development agreement, the Transurban team is designing the tracks for up to $54 million at its own expense. However, the deal is most significant because it also gave Transurban the right of first refusal on a 50-year contract to build the tracks, valued at up to $9 billion, and operate them in exchange for conserving most toll revenue. Maryland officials said the lanes would cost the state nothing.
The 50-year contract is expected to be one of the largest ever in Maryland and one of the largest for highway projects in the United States governed by public-private partnerships.
Douglas Gansler, Cintra’s lawyer and Democratic candidate for governor, declined to comment on Saturday, saying he was not allowed to do so under bidding rules.
However, Gansler said in an earlier Circuit Court hearing that he expects MDOT to uphold his award of the contract again, even on the merits — a decision his client would likely appeal to again. the tribunal.
The Cintra team and the state also appealed various portions of the February Circuit Court ruling to the Maryland Special Court of Appeals, which has yet to issue a ruling.
The Cintra team, known as Capital Express Mobility Partners, said the MDOT should disqualify the Transurban proposal or reopen the competition.
MDOT plans to add two toll lanes in each direction to the ring road between the Virginia side of the American Legion Bridge and the I-270 spur, then on I-270 to Frederick. One of the toll lanes on lower I-270 is believed to be from a converted carpool lane, while the lane configuration on the northern section has not been determined. The aging American Legion Bridge would be replaced and expanded. Regular highway lanes would be rebuilt and remain free.
