Maryland transportation officials have rejected an unsuccessful bidder’s protest of the state decision to award the initial phase of the $11-billion Beltway/I-270 managed lanes project to Accelerate Maryland Partners, a team led by Australia-based Transurban/Macquarie Infrastructure Development.

Capital Express Mobility Partners, led by infrastructure developer Cintra, and owned by Spain-based contractor Ferrovial, challenged several aspects of the Maryland Dept. of Transportation selection process for the public-private partnership’s predevelopment phase. The challenge included  Transurban/Macquarie's abillity to substitute itself as the team's lead contractor following the withdrawal of Archer Western after proposers were shortlisted in July 2020.

According to protest documents, the Cintra protest asserted that allowing Transurban/Macquarie to make the change represents “an unfair and unrealistic gaming of the evaluation criteria” and “greatly jeopardizes" certainty of the delivery, which it said was "a fundamental feature of the procurement.”

Cintra also claimed that the Transurban/Macquarie bid was based on unreasonably low assumptions for construction costs, and that, absent a lead contractor, the team would be unable “to identify and mitigate construction risks until it is too late.”

Said the protest: “This cannot possibly be the best value solution for the state."

MDOT contracting officer Jeffrey Folden countered that the state-approved contractor change, requested by the Transurban/Macquarie team in October 2020, complied with state law and that the firm’s experience with similar projects in Virginia and elsewhere, plus other factors, would ensure “good-faith performance of the work.”

He also ruled that the protest was untimely. It was filed on March 1, nearly two months after the state's Jan. 8 announcement of the three shortlisted teams that had submitted bids.

Folden also ruled that state agency acceptance of Transurban/Macquarie's financial proposal pricing methodology “was reasonable and consistent with the clear language of the RFP” and justified its analysis, evaluation and scoring of the submitted technical and financial proposals.

In a statement, MDOT says its determination that the Transurban/Macquarie proposal is most advantageous to the state was consistent with RFP requirements. That included "technical and business judgment exercised by the evaluation committee and evaluation teams" and over 40 multi-disciplinary experts.

Cintra's appeal of the protest denial to MDOT senior administrators is pending, although no timeline for a decision has been given.

That process could further delay final approval of the state contract award to the Transurban/Macquarie team by the state’s three-member Board of Public Works, which includes Gov. Larry Hogan (R), a strong backer of the project.

Should the Cintra team lose its appeal, it could take its protest into Maryland’s judicial system, raising the potential of court-ordered injunctions that would prevent some or all project elements from proceeding.