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."

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    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:

  • Non-responsiveness. The suit claims that Flatiron received high technical scores in areas where its proposal was non-responsive to the limitations placed by MnDOT, yet the other teams were penalized for being responsiveness. Such areas include exceeding rights-of-way limits, quality control structure and the schedule. The plaintiffs state that "it appears as if Flatiron has included the cost of any liquidated damages for late completion in its proposal price" but claim that "it is unlikely that Flatiron can complete the project by the scheduled date" of December 2008. "Thus, if liquidated damages are assessed for late completion, the state's taxpayers...will be paying," the lawsuit states. Moreover, the suit claims, MnDOT required a minimum of three webs for the superstructure girders in the RFP, while Flatiron's design shows only two webs per box girder.

  • Errors. The lawsuit claims that MnDOT's scoring of proposals included errors such as not "think[ing] certain personnel had desirable experience or authority when, in fact, they did."

  • "Arbitrary and Capricious" Decision. The lawsuit claims that scoring public relations was "impermissible" and outside the RFP. The references to building a "memorial" to the victims of the I-35W bridge collapse, the suit claims, is non-responsive because "other proposers were given specific direction not to include a memorial in their designs."

  • Failure to consider life-cycle cost implications. The suit claims that MnDOT didn't properly consider the number of transverse joints needed for the 505-ft-main span, claiming that "these joints will not be protected by a low-permeability wearing course and wlll require extensive maintenance." The suit also criticizes concrete box designs in general, claiming "MnDOT must expect deck leakage due to micor-cracking and natural porosity of concrete."

    • The plaintiffs also seek compensation for court costs and legal fees.