A judge rules that the Losing bidder on freeway project owed $500,000 by state

A contractor whose bid to design and rebuild the I-71/670 interchange was rejected by state transportation officials is owed up to $500,000, the Ohio Court of Claims has ruled.

Trumbull-Great Lakes-Ruhlin, a joint venture of construction companies, sued for breach of contract in May after the Ohio Department of Transportation selected a competitor to handle the three-year, $200 million project.

Judge Joseph Clark ruled this week that transportation officials were wrong to toss the bid and said the losing bidder is entitled to the money for preparing its proposal.

Clark stopped short, however, of halting construction and ordering the state to reopen the bidding process. Doing so would lead to unreasonable construction delays, he said.

“As this contract represents just the first phase of a multiphase project, the interests of the traveling public in the orderly and timely completion of the work weigh heavily against the issuance of an injunction,” Clark wrote.

Transportation Department spokesman Steve Faulkner called the decision disappointing and said an appeal is being considered.

Because of the size and complexity of the I-71/670 project, the department combined design work and construction into a single contract to save time and money.

It also agreed to “share the risk” by paying stipends to design-build teams that made the short list but lost out on the lucrative contract, which went to CH2M Hill and Kokosing Construction Co. in April.

In the case of Trumbull-Great Lakes-Ruhlin, though, department officials were unhappy with the way it proposed configuring the lanes. Deputy Director James Young testified at trial that it was a design the state “would never build.”

The department deemed the proposal “non-

responsive,” which meant it would not have to pay the $500,000. The judge felt otherwise and said the bidder’s proposed design — while sharing some characteristics of the current interchange — still would have alleviated congestion and improved safety.

Barring an appeal, the losing bidder will submit expenses to be audited by the state. The joint venture contends it spent more than $2 million, but the maximum amount to be paid is $500,000.

In his ruling on Tuesday, the judge noted that a “relatively large” number of documents were removed from the department’s headquarters after the lawsuit was filed in May. The losing bidder alleged that the destruction of documents hurt its case, and it asked for sanctions against the state, but Clark said it did not affect the outcome.

The Columbus project was the second in as many years in which the state offered to pay losing bidders. Transportation officials defended the practice, which came under scrutiny from the state inspector general last year.

Faulkner said the practice results in better proposals because bidders spend more time and money on “highly complex” projects knowing they will get something in return. Some of the losing bidders’ concepts also can be incorporated into other road projects, he said.

“When we pay, we’re buying that design. That’s now our property,” Faulkner said. “Just because they didn’t make the cut on this particular project doesn’t mean some of those designs aren’t useful to ODOT in the future.”

Source: David Eggert, The Columbus Dispatch