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Low Bidders Sue MnDOT over Award

Thursday, October 17, 2013

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The losing bidders for a $100 million interstate highway construction project in Minnesota have asked the state's Court of Appeals to review the bidding process for the award, which went to the highest bidder.

Minnesota's Department of Transportation (MnDOT) awarded the Interstate 35E MnPASS design/build project to Ames Construction Inc. in the spring, although its bid was $11 million more than that of low bidder McCrossan Construction.

MnDOT's Technical Review Committee selected the Ames proposal for the Twin Cities project on the basis of "Apparent Best Value."

Ames Construction project
Ames Construction Inc.

The contract was awarded on an "Apparent Best Value" basis to Ames Construction Inc., whose projects include Colorado's U.S. 36 Express Lanes Project.

The award drew a formal protest Aug. 19 from McCrossan Construction and the other bidder, Lunda/Shafer Joint Venture. The losing bidders alleged that MnDOT "did not follow the requirements in the Instructions to Proposers" (ITP) and that the Technical Review Committee "did not apply the explicit criteria set forth in the Instruction to Proposers when scoring the proposals."

Irregularities Cited

The bidders alleged, for example, that:

  • Bidders were limited to 120 days during which they could restrict the shoulders on two stretches of I-35, yet Ames' proposal restricted the shoulder on one of those strectches for more than 300 days;
  • Bidders were required to obtain approval for any design changes through the Alternative Technical Concept (ATC) process and could include an ATC in their bid only if MnDOT had approved it in advance. Ames' proposal "did not comply withthe instructions," the bidder said; and
  • Evaluators did not adhere to the Technical Proposal Evaluation Manual in scoring the proposals, "not holding Ames to the criteria set forth in the bid documents" and thus giving that company "a substantial advangage not enjoyed by other bidders."

Protest Recommendation

MnDOT's Protest Official, Kent Allin, conceded in his Protest Recommendation that Minnesota's Instructions to Proposers and Technical Proposal Evaluation Manual contained "inconsistent language," but Allin said that "technical error" did not result "in any material inequality."

McCrossan Construction
C.S. McCrossan Construction

Plaintiff and losing bidder C.S. McCrossan Construction says it submitted the lowest bid and achieved the highest technical score in the state's evaluation. The company's projects include Highway 14 in Waseca, MN.

Allin also noted that MnDOT had declined to comment to his office on its scoring protocol, a response that "was simply not helpful." But again, he said, the non-response "does not equate to anything that would make the selection process arbitrary or capricious."

He also noted that MnDOT acknowledged two deviations from the RFP requirements and said he found the "conflict and varying language" in the procurement documents "troubling."

But he added that it was "impossible to expect there could ever be a procurement process of this size and complexity that does not involve a single deviation from an RFP requirement outside the ATC process."

In the end, Allin concluded that the selection of Ames followed more than 1,200 hours of evaluation and "was conducted in a manner that was reasoned and fair."

On Sept. 17, Minnesota Commission of Transportation Charles A. Zelle accepted Allin's recommendations and reaffirmed the award to Ames.

Appeals Petition

The plaintiffs allege in their Statement of the Case, filed Monday (Oct. 14), that MnDOT "acted arbitrarily or capriciously or otherwise contrary to law in awarding the contract to Ames."

Lexington Bridge
Wikimedia Commons / Todd Murray

The Lexington Bridge, completed in 2004, carries I-35 East over the Mississippi River into St. Paul, MN.

The suit seeks an “immediate injunction to halt further work while the courts determine if the department acted properly in awarding the bid to a company with a lower technical score and [higher] price tag" than McCrossan's.

McCrossan said in a news release that MnDOT "improperly applied federal rules when it comes to the hiring of disadvantaged business enterprises (DBE)" and that McCrossan's bid was "the only proposal that fit within the state's budget for the project, as well as the bid with the highest technical score."

   

Tagged categories: Bidding; Bridges; Construction; Contracts; DOT; Government contracts; Lawsuits; Roads/Highways

Comment from peter gibson, (10/17/2013, 11:33 AM)

I love this story. In Europe bidding is on the best bid principle. In the US contractors are scrambling to offer the lowest bid. With the consequences thereof. Now the whining begins.


Comment from John Fauth, (10/18/2013, 9:03 AM)

"Best" is a relative term.


Comment from WAN MOHAMAD NOR WAN ABDUL RAHMAN, (10/18/2013, 9:34 AM)

I believed that the tender board have evaluated the bidding according to procedures. Nowadays we cannot please everybody.


Comment from M. Halliwell, (10/18/2013, 12:14 PM)

I must admit there is something to the Dutch system....knock off the high and low bids and go for the one closest to the middle for what's left. Knocks off the most likely outliers and (hopefully) puts you middle of the road in balancing inexpensive with safe.


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