Construction firms suing MnDOT over project award

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By Brian Johnson
Dolan Media Newswires

MINNEAPOLIS — Three contractors who unsuccessfully bid on the $100 million Interstate 35E MnPASS project are suing the Minnesota Department of Transportation over its decision to award the project to a proposer with the highest bid.

Lunda Construction Co., Black River Falls, Wis.; Shafer Contracting, Shafer, Minn.; and C.S. McCrossan, Maple Grove, Minn.; lost out on the design-build project despite submitting bids that were up to $11 million lower than the bid from Burnsville-based Ames Construction, which won the contract.

The contractors claim that MnDOT ignored state law and its own instructions to bidders in awarding the project. They also contend the successful proposer didn’t comply with the project’s bid specifications.

“When they establish rules for bidding, they need to follow them,” said Robert Huber, shareholder with Minneapolis-based Leonard Street and Deinard, which is representing the contractors.

According to an email attributed to spokesman Kevin Gutknecht, MnDOT declined to comment on the lawsuit, saying the agency doesn’t discuss litigation.

MnDOT awarded the design-build project on the basis of price and a technical score. Although Ames had the highest price, it had a better technical score than any of the other bidders.

Bidders were Ames ($98.43 million), C.S. McCrossan ($87.499 million), the joint venture of Lunda and Shafer ($88.997 million), and Edward Kraemer & Sons/AECOM ($97.169 million).

Edward Kraemer & Sons, Plain, Wis., and AECOM, Chelmsford, Mass., also are involved in the lawsuit.

Dave Herzog, MnDOT’s I-35E MnPASS project manager, declined to comment in July when asked whether Ames’ proposal was worth the extra money. But he did say that the Ames team “met the requirements in the scoring.”

Technical factors considered in the scoring included maintenance of traffic, geometrics, maintenance of storm water ponds and other environmental factors, Herzog said in July.

The project calls for construction of high-occupancy toll lanes on I-35E between Pennsylvania Avenue in St. Paul and Little Canada Road in Little Canada. It includes bridge replacements, pavement reconstruction and other work along with construction of new MnPASS lanes.

In the lawsuit, the plaintiffs said the winning bid improperly was deemed responsive despite the contractor’s “failure to obtain approval to deviate from width requirements on the Highway 36 bridge.”

Also, the winning bid proposed “lane constrictions on I-35E that were more than twice the bid specifications,” the plaintiffs said in the lawsuit.

MnDOT declined a request to delay execution of the bid, and the companies had “no other option but to ask the Minnesota Court of Appeals to rule on the legality” of MnDOT’s actions, according to the plaintiffs.

“When it’s a state agency and they issue a final decision, it’s subject to direct appeal to Court of Appeals,” Huber said.

The Court of Appeals is expected to issue a decision in about nine months, Huber said.