Two Minnesota citizens – not the two losing bidders for the Interstate 35W bridge rebuild – have filed a lawsuit against the Minnesota Dept. of Transportation demanding that it declare its design-build contract award to a consortium let by Longmont, Colo.-based Flatiron Constructors, Inc. "illegal" and "void" and asking for a "permanent injunction" against the reconstruction, slated to start later this month.
In the lawsuit filed Oct. 17 in the County of Ramsey District Court, Scott Sayer and Wendell Anthony Phillippi say that MnDOT "could have awarded the project to Flatiron much earlier than Oct. 8, disclosed the scoring data and proposals to the public, and waited to execute the contract" so as to "give the public time to review the proposals." They claim, for example, that Flatiron obtained "competitive advantages" by designing partly out of the designated right-of-way, while the losing teams stayed within the ROW. They also claim that the team's design does not have three webs for concrete box girder designs and criticize the selection for its "implications" of "eventual micro-cracking and natural porosity of concrete."
A MnDOT spokesman said late Oct. 17 he was not yet aware of the lawsuit, which gives the agency 20 days to respond. In the meantime, the plaintiffs "hope to secure a court date to request a temporary injunction," says Dean B. Thomson, of Fabyanske, Westra, Hart & Thomson, P.A. The law firm also represents the two losing bidders, C.S. McCrossan and Ames/Lunda, in filing a Sept. 20 protest letter with MnDOT's design-build office. Both teams submitted costs significantly lower than the winner, Flatiron/Manson, which proposed a price tag of $233.8 million and a schedule of 437 days. Though Flatiron's bid was $57 million higher and 70 days longer than the lowest bid, proposed by C.S. McCrossan, it had the highest technical score, which ultimately flipped the bid in Flatiron's favor.
Flatiron is in joint venture with Seattle-based Manson Construction Co. Also on the team is Orlando-based Johnson Bros., in a support role and Tallahassee, Fla.-based Figg Bridge Engineers Inc. as lead designer. On Oct. 10, the team unveiled a design for a 504-ft-long concrete segmental main span and options for two types of piers. At that time MnDOT also released the documents detailing the bid proposals. The current lawsuit is based on those documents.
In the lawsuit, Sayer and Phillippi, whom Thomson says are construction industry executives but are not affiliated with the two losing teams, accuse MnDOT officials of having "decided to delay award of the contract...in an attempt to discourage judicial review of and protests about ...award procedures and decisions."
They claim that "other proposals...are available...that would complete thte project much more quickly and less expensively than Flatiron's proposal" and say that MnDOT could exercise a termination for convenience clause. Other claims in the lawsuit include:
The plaintiffs also seek compensation for court costs and legal fees.