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A consortium that failed to win the right to build High Occupancy Toll lanes in Montgomery County has lost its initial protest, Maryland Matters has learned.
The consortium, a group of firms that formed under the banner Capital Express Mobility Partners, filed a formal protest in March, after the Maryland Department of Transportation awarded the multi-billion dollar contract to a rival, Accelerate Maryland Partners (AMP).
In its filing, Capital Express Mobility Partners (CEMP) accused MDOT of “an unfair and unrealistic gaming” of its scoring system to benefit AMP.
The Accelerate group was led by Transurban, the transportation behemoth that built and owns a sprawling network of “managed lanes” in Northern Virginia, including large portions of the Capital Beltway (I-495).
Top executives from Transurban’s North American office, based in Tysons Corner, Va., accompanied Gov. Lawrence J. Hogan Jr. (R) on a 2019 trade mission to Australia, where he visited the firm’s global headquarters.
A top Hogan aide later left the administration to take a top post with Transurban to help coordinate the I-495/I-270 project.
Hogan announced plans to have a private sector firm finance and construct variably-priced toll lanes on the two frequently-congested highways in 2017. He and Virginia Gov. Ralph S. Northam (D) ceremoniously signed a “Capital Beltway Accord” two years later.
That “accord” would bring the two states together to reconstruct the American Legion Bridge, which spans the Potomac River.
Northam announced immediately that Virginia would use its existing contract with Transurban to handle its share of the project, fueling rampant speculation that Maryland would choose the Transurban-led consortium, AMP.
The award was announced on Feb. 18.
MDOT’s rejection of CEMP’s subsequent protest was contained in a letter to the consortium’s lead attorney, former Maryland Attorney General Douglas F. Gansler, and the group’s Austin, Texas-based project director, Rebecca Brooks. It was contained in a set of documents obtained by Maryland Matters in response to a Public Information Act request.
CEMP raised several issues in its filing. Chief among them was a complaint that AMP was judged to have submitted the best bid despite the removal of their original lead construction partner, Archer Western Construction.
“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 — great jeopardizes the Project’s delivery certainty, a fundamental feature of the procurement,” they wrote in their previously unreported appeal.
“This cannot possibly be the best value solution to the State.”
In addition, CEMP noted that their bid received a “technical rating” of “Good+.” AMP received a technical rating of “Good.”
In denying the protest, project manager and contracting officer Jeffrey T. Folden said that the evaluation team judged AMP to have a far superior “financial score,” 1,356 points versus 665 for CEMP and 800 for a third bidder, AccelerateMaryland Express Partners.
“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,” Folden wrote in his response to 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,” Folden added. “CEMP has failed to demonstrate that MDOT’s determination was arbitrary, capricious, unreasonable, or contrary to law, and its protest is denied.”
CEMP — a consortium led by Cintra Global, John Laing Investments Limited and Ferrovial Agroman U.S. Corp. — can appeal Folden’s decision to Transportation Secretary Greg Slater. He would then be required under the state’s P3 procurement rules to conduct an investigation and take witness testimony.
Gansler declined to comment on Monday and it could not immediately be learned whether the consortium intends to pursue an appeal.
Hogan, who is term-limited, leaves office in January, 2023. MDOT must submit its “pre-development” contract with AMP — for planning and design — to the Maryland Transportation Authority for approval, then provide state legislators, the comptroller and the treasurer 30 days to review it.
It would then go to the Maryland Board of Public Works for final approval, as would a subsequent agreement to build the first portion of the mammoth project, slated to include the bridge, the western-most portion of the Capital Beltway and the southern section of I-270.
The timeline for doing all this before Hogan leaves office is tight, and project advocates are hoping to avoid time-consuming appeals or litigation.