A lawyer for two losing bidders for the I-35W bridge contract in Minnesota has provided an 11-page supplement in addition to an original two-page protest concerning the project.
The supplement, filed on behalf of losing firms C.S. McCrossan and Ames/Lunda, accuses MnDOT of wanting a concrete bridge from the start, of falsely interpreting state law to keep bid details secret and of extending the deadline for bridge completion in a way that harms taxpayers.
The letter, signed by Minneapolis attorney Dean Thomson, also mentions that using public relations as one of the factors in choosin a team is not permitted by state statutes. It says MnDOT’s bid-protest procedure is illegal because it tries to exempt the agency from judicial review.
The protest takes issue with several aspects of the process, citing in particular a Sept. 5 addendum in which MnDOT placed limits on the damages imposed if the project takes longer than the completion date in the contract. Originally, the state said it would collect $200,000 a day for each day the project was late. The addendum limits the number of such days to 135; after that, the state may collect $3,500 a day.
The team of Flatiron Constructors Inc. and Johnson Bros. was awarded the contract Sept. 19. Flatiron proposed to build the bridge in 437 days. McCrossan and Ames/Lunda had submitted proposals of 367 days and 392 days, respectively.
Flatiron's bid was also the highest, at $233.8 million, but also received the best technical score.
In the original protest, the bidders demanded that MnDOT release information about the technical scores that each team received. On Sept. 25, they protested MnDOT's refusal to do so before the contract is signed. Without such data, the letter says, "there can be no effective oversight of MnDOT's procurement decisions."
Concerning the claim that MnDOT had a predetermined preference for a concrete bridge, the letter says, "MnDOT's emphasis on cost and time actually encouraged submission of a structural steel design, and it turned out not to be reliable guidance."
Both Ames/Lunda and McCrossan submitted plans for steel bridges and received lower technical scores for doing so, the letter says. It calls the scoring done by MnDOT's six-member panel "arbitrary and capricious."
According to MnDOT spokesman Kevin Gutknecht, the bidding “was a fair process, it was a thorough process done according to state law and we stand by it.”
Gutknecht said MnDOT will not “speak to the specifics” of the revised protest.
“We’re not going to debate it like that,” he said. “We’ll let the process take its course.”
Gutknecht that said the protest would take "a few days to a couple of weeks" to resolve and that MnDOT was still on schedule to try to sign a contract with Flatiron Construction by the end of the month.
Flatiron spokeswoman Christie DeLuca declined to comment on the new protest documents, saying her firm was focused on building the new bridge.
Also Sept. 25, the German firm Hochtief announced that it had agreed to purchase Flatiron from Royal BAM Group of the Netherlands for $240 million.