The low bidder for an approach to the St. Croix River Crossing, a planned $690-million span between Minnesota and Wisconsin, has filed a federal lawsuit alleging the Minnesota Dept. of Transportation illegally selected a team with a more aggressive affirmative-action program for a bid that will cost the state nearly $6 million more.

The suit filed by C.S. McCrossan, Maple Grove, Minn., alleges MnDOT violated a federal rule that precludes applying disadvantaged business enterprise (DBE) criteria for design-bid-build projects on design-build projects, such as the St. Croix crossing.

"Until MnDOT approves the final design, the design-build contractor cannot estimate with final assurance the anticipated amount of work that can be procured from subcontractors and suppliers," the suit contends.

MnDOT originally solicited bids for the project on the basis of construction costs, technical details and a targeted DBE participation rate of 16.7%. In February, McCrossan submitted a bid of $52.3 million, along with technical plans that earned it a composite score of 87.59. The winning bid, by Ames Construction Inc., Burnsville, Minn., and Lunda Construction Co., Black River Falls, Wis., totaled $58.1 million but earned a composite score of 85.08.

Under MnDOT's design-build program, a winning bid need not be the lowest in price; other considerations can raise or lower a bid's score. While McCrossan specified a DBE participation rate of 10.6%, the Ames-Lunda team included a rate of 16.7%.

MnDOT awarded McCrossan the project in February, but reversed its decision after its Office of Civil Rights concluded the firm didn't make "good-faith efforts" to obtain DBE participation.

McCrossan says its bid indicated intent to increase DBE participation in post-bid negotiations.

"We are in no way debating the DBE program but rather expressing our concern over the subjective nature of how the state applies the rules," says President Tom McCrossan in a statement. "McCrossan was never given the opportunity to continue with its efforts to secure additional DBE participation, which has been past practice on other projects and is encouraged by federal regulations."

The suit, filed in U.S. District Court, seeks an immediate injunction to halt work. MnDOT indicated the project will proceed this spring but declined further comment.