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This story was updated at noon on Feb. 17, 2022, to reflect the judge’s ruling.

An appeal from a consortium that lost its bid to work on a toll-lane project for interstates 495 and 270 will head back to the Maryland Department of Transportation for further review, a Montgomery County judge ruled on Thursday.

At issue was whether the consortium, Capital Express Mobility Partners, filed its appeal in a timely manner. Capital Express Mobility Partners (CEMP), argued that it had, while the Maryland Department of Transportation (MDOT) said the challenge should have been filed before the winning bid was chosen.

Montgomery County Circuit Judge John Maloney said in court on Thursday that he found that CEMP’s appeal was filed on time. He determined that there were financial aspects about the winning bid that could not have been known until after it was selected in February 2021.

“[MDOT] will have to consider the substance of the protest that this court found to be timely made,” he said.

Maloney initially set a 60-day time frame for MDOT to consider CEMP’s appeal, but the parties later agreed to work out the timing issue during another hearing scheduled for Friday morning.

The state announced on Feb. 18, 2021, that it had selected Accelerate Maryland Partners LLC to oversee work on the project, which includes rebuilding the American Legion Bridge and reconstructing two high-occupancy toll lanes in each direction from the southern end of I-270 to the I-370 interchange.

Accelerate Maryland Partners (AMP) is made up of Transurban Operations Inc. and Macquarie Infrastructure Developments LLC. In 2020, the consortium briefly included Archer Western Construction LLC as the lead contractor, too, according to state transportation officials.

A competing consortium, Capital Express Mobility Partners (CEMP), led by the Spanish firm Cintra, filed a bid protest in March 2021 after the state awarded the bid to AMP.

The protest was based on the grounds that Transurban’s cost estimates were unrealistically low and that AMP didn’t have a lead contractor when the state selected it, The Washington Post reported on Wednesday.

Maloney disagreed with one aspect of CEMP’s argument on Thursday, noting that it should have filed a protest on AMP not having a lead contractor in January 2021.

“While it’s concerning that a winning bid may not have a lead contractor, as petitioner alleges, that is an objection that should have been filed when they learned about it,” he said.

CEMP took its challenge to Montgomery County Circuit Court in September after MDOT rejected its protest twice, the Post reported.

On Wednesday, attorneys for MDOT argued that CEMP should have filed its bid protest in January 2021, rather than on March 1 after the bid had already been awarded.

But CEMP’s legal team argued that it filed within the allotted five-day period after a “debrief” session was held on the bidding process on Feb. 24, 2021, and that the case should be remanded to MDOT.

Attorney Doug Gansler, representing CEMP, said during Wednesday’s hearing that on Jan. 8, 2021, MDOT announced the three finalists for the contract, and two of them were AMP and CEMP. Later that month, he said, MDOT wrote a letter saying it was continuing to review a “short list of proposers,” although a decision had not yet been made.

After CEMP learned another consortium had won the bid on Feb. 18, 2021, it requested a “debrief” from the state, which occurred on Feb. 24, said Gansler, a former Maryland attorney general.

CEMP filed its bid protest on March 1 — five days after the debrief, which he said was within the time frame allowed to file a protest.

Assistant Attorney General Lydia Hoover, arguing on behalf of MDOT, said Wednesday that CEMP knew in January what financial criteria the state used to score proposals.

At that point, each bidder knew that it would receive a score of 0 to 1,791, and had information about how the score for the winning proposer would be calculated.

“[CEMP] never raised any objections to a proposer being able to receive a score of 0 to 1,791 until it submitted the worst financial proposal and lost the competition,” she said.

MDOT Contracting Officer Jeffrey Folden wrote similar comments in an April 15, 2021, letter to the plaintiffs, denying their initial protest.

“Based on the mathematical calculations and allocation of points that were disclosed in the [request for proposals], every proposer knew what its point allocation would be at time of proposal submission,” Folden wrote at the time. “Each proposer team had to determine how to fund the project and allocate risks among the seven categories of pricing that were scored in the financial proposal. While several questions were asked during the RFP process, no proposer protested the financial form, the calculations, the points, or the lack of a floor for any of the financial proposal criteria.”

MDOT gave AMP a score of 1,356, the highest of the three, while CEMP scored the lowest, at 665.

Hoover said Wednesday that CEMP used a “lie in wait” strategy to file a protest, only after it found out it lost the bid.

“CEMP’s strategy and interpretation is an attempt to get two bites at the apple and two tries in a solicitation process that it lost because it had the worst financial proposal of all proposers,” she said.

Gansler, who is running in Maryland’s gubernatorial Democratic primary this year, argued the case on Wednesday based on the timing question, rather than the merits, but said that might change if the case ends up back in Circuit Court.

“People paying these tolls for the next 50 years … should have transparency in the process by which MDOT picked the company …,” he said.

Dan Schere can be reached at daniel.schere@bethesdamagazine.com

Dan Schere

Dan Schere can be reached at daniel.schere@bethesdamagazine.com.