The companies have challenged MDOT’s award of a “predevelopment agreement” to a team led by Australian firms Transurban and Macquarie to design the lanes and have the right of first refusal for a 50-year contract to build and operate them via a public-private partnership. Under the “predevelopment agreement” approved in August, the firms will spend up to $54 million to design the lanes at their own expense, but the longer-term contract would be worth billions.
It’s unclear how the court filing might affect that design work or the project’s overall timeline. However, legal cases can delay large, complex projects for months or years if a judge orders work to stop while the case is decided, as occurred on Maryland’s stalled Purple Line construction. The bid protest case was filed in Montgomery County Circuit Court but has not yet been assigned to a judge, according to online court records.
The Cintra team has alleged that Transurban’s financial proposal was based on “unrealistic” construction costs that were too low and didn’t comply with the bid requirements because its team didn’t include a construction contractor. Without a lead contractor, the Cintra team has said, the Transurban team will “have no ability to identify and mitigate construction risks until it is too late.”
The Transurban consortium initially listed Atlanta-based Archer Western Construction as its lead contractor, but it was not part of the final bid.
A Transurban spokeswoman declined Friday to comment on the bid protest or its allegations.
Douglas Gansler, a lawyer for the Cintra team, declined to comment on the filing.
MDOT spokeswoman Erin Henson said of the court case, “The judicial review is another step in the process.”
As part of the bid rules, the Cintra team had to exhaust the administrative appeal process before it could go to court.
Jeffrey T. Folden, MDOT’s contracting officer on the project, has said the Transurban proposal had the best overall value. MDOT, Folden has written, required only that bid teams have “construction and/or management” experience and that the state valued Transurban’s and Macquarie’s “experience with similar projects, their financial integrity and other relevant factors” that the state said would “ensure good faith performance of the work.”
Transurban also operates 53 miles of toll lanes in Northern Virginia, including on the Beltway, and is building or planning more there.
In granting the agency’s motion to dismiss the Cintra team’s appeal, Lewis wrote that the appeal was “untimely” because its claims weren’t filed within the timeframes required by the rules of the solicitation.
“This decision is the final agency action,” Lewis wrote in his 22-page decision. “The protester may pursue any available judicial remedies provided for under state law.”
Maryland Gov. Larry Hogan (R) has said companies will design, build and finance the highway widenings in exchange for keeping most of the toll revenue. The additional lanes, he has said, will come at “no net cost” to taxpayers and will alleviate chronic and worsening traffic congestion.
Critics of the plan say it will be too damaging to streams and public parkland, exacerbate climate change and harm adjacent communities that would lose land, hear more highway noise and breathe more vehicle emissions.