Sound Transit bidder appeals process

Calling it an $800,000 waste of taxpayer money, a Kirkland construction company filed an appeal Tuesday against Sound Transit’s recent disqualification of its low bid to build a long-awaited commuter rail link connecting South Tacoma to Lakewood.

“This is a lot of money for Sound Transit to be throwing away in very tough times,” said Jeff Levere, chief executive officer of MidMountain Contractors. “People are getting awfully tired of this kind of thing.”

The dispute centers on the bidding process for Sound Transit’s so-called “D to M Street” project, which consists of building a railroad bridge over Pacific Avenue for expansion of the Sounder commuter line.

MidMountain’s $40.8 million bid was the lowest submitted among seven bidders last month.

But the regional transit authority later disqualified it after the second-lowest bidder, national contractors PCL Construction Services, protested MidMountain’s bid because the Kirkland company filed a form late.

Instead, Sound Transit officials will recommend PCL’s $41.6 million to the agency’s board, which is set to consider the contract award Aug. 26.

MidMountain filed a protest July 14, but Sound Transit rejected it six days later. The company, which since has hired a public relations firm and a high-powered lawyer, filed a second appeal Tuesday.

MidMountain also has contacted politicians and the media to make its case: That ultimately, taxpayers stand to lose $800,000 over what is little more than a minor paperwork error.

Attorney Bob Marconi contends the document in question – a federal form certifying MidMountain did not use federal funds to lobby for the contract – had been properly prepared at the time bids were opened, but accidentally wasn’t included in the bid envelope.

When a representative who submitted the bid caught the error, the form was turned in – 20 minutes after deadline, Marconi said.

Sound Transit accepted the bid and informed MidMountain it was the apparent low bidder, he said.

“Their representative told us they did not consider the omission of that form at the bid opening a significant issue,” Levere added.

But, after PCL protested, the agency informed MidMountain its bid was “nonresponsive.”

Reason called the situation “unfortunate,” but added that Sound Transit must stand by its decision to ensure the process’s integrity.

“We are very clear about what our contracting procedures are, and it would’ve been unfair in the very least to make an exception,” she said.

When pressed on whether the agency could accept the bid had it wanted to, Reason said she didn’t know.

“I’m not a lawyer,” she said. “But there are federal and state procurement laws and regulations that we’re obligated to comply with. We’re following the letter of the law.”

Marconi noted that Sound Transit’s rejection letter contains “no specific reference to any state or federal case or regulation,” and offers only generic references.

He added that state and federal law allow for late bid form submissions, so long as they provide no advantage.

“Sound Transit’s own bid documents state they have the right to waive as a minor irregularity or informality any problem with a bid that they deem to be in their best interest,” Marconi said.

In a briefing to the Tacoma City Council last week, Sound Transit officials said bid protests have slightly delayed the project, adding that they expect construction to begin by early fall and take up to 20 months.