The Maryland Dept. of Transportation will have to reconsider a protest lodged by the losing bidder for the initial phase of its $9-billion Express Lanes project, according to a Feb. 17 state circuit court judge's ruing. The decision likely stalls the state's ambitious plan to add capacity along portions of the I-495/Beltway and I-270 west of Washington, DC, using a progressive public-partnership.

Montgomery County Circuit Court Judge John M. Maloney largely rejected the agency's assertion that the project’s losing bid team—Capital Express Mobility Partners, led by Ferrovial-owned infrastructure developer Cintra—had missed stated deadlines to protest the state's February 2021 selection of Transurban/Macquarie Infrastructure-led Accelerate Maryland Partners for the project’s predevelopment phase.

Of the three proposals MDOT considered for the project, the Cintra-led one received the highest technical rating and the lowest financial score.

Conversely, Transurban/Macquarie received the highest financial score and a “Good” technical score.

The Cintra team argued that Transurban/Macquarie should not have been allowed to substitute itself as lead contractor after original team contractor Archer Western withdrew soon after the contract shortlist was announced in July 2020.

Cintra also claimed that the Transurban/Macquarie bid was based on unreasonably low assumptions for construction costs, and that absent a lead contractor, it would be unable “to identify and mitigate construction risks until it is too late,” according to protest documents. As such, Cintra sought to either disqualify the Transurban/Macquarie team or reopen the bid process.

Although MDOT has given other reasons for twice rejecting Cintra’s arguments, Maloney’s decision means the agency must now reconsider them unless either side chooses to appeal. Cintra’s attorneys have stated publicly that they expect the protest to be rejected yet again, potentially setting the stage for a broader lawsuit against the state agency.

Officials from the agency have yet to comment.

Also uncertain is the fate of MDOT’s seven-month-old contract with Transurban/Macquarie, which includes exclusive rights to negotiate the project’s multi-billion-dollar construction contract and 50-year operations/maintenance concession. The team is reportedly in the process of selecting a new contractor as it proceeds with design work at its own expense. 

The controversy comes as Maryland looks to resume full-scale construction work on another controversial transportation P3—the half-built $3.4 billion Purple Line light-rail system, which has been mired in delays and cost overruns that led to the acrimonious departure of the original design-build team.

A recently state-approved contract between Purple Line Transit Partners, the private consortium managing the Purple Line for MDOT, and the U.S. branches of Spanish builders Dragados and OHL calls for the project to be completed by fall 2026 at a cost that is $1.4 billion more than originally budgeted.