McCrossan sues to stop MN 36 bridge work

Company: MnDOT ‘illegally’ rejected bid

MINNEAPOLIS — Maple Grove-based CS McCrossan Construction, Inc., alleges the state Department of Transportation illegally rejected the company’s St. Croix River Crossing bridge Minnesota 36 approach project bid and wants work stopped on the project, according to a lawsuit filed Monday in U.S. District Court.

McCrossan seeks an immediate injunction to halt further work while the courts determine if the MnDOT acted properly in awarding the project a joint venture of Ames/Lunda with a lower technical score and $6 million higher bid than McCrossan’s proposal.

McCrossan alleges in the lawsuit that MnDOT improperly applied federal rules regarding the hiring of disadvantaged business enterprises (DBE). By rejecting McCrossan’s bid, the state rejected the only proposal that both fit within the state’s St. Croix Crossing project budget and had the highest technical score.

“We are in no way debating the DBE program, but rather, we are expressing our concern over the subjective nature of how the state applies the rules,” said Tom McCrossan, company president. “McCrossan was never given the opportunity to continue with efforts to secure additional DBE participation which has been past practice on other projects and is encouraged by federal regulations.”

In the lawsuit, McCrossan’s attorney, Robert J. Huber of Minneapolis, claims the company was a responsive and responsible bidder and certified its commitment to meet the St. Croix Crossing project’s 16.7 percent DBE goal. The lawsuit adds that McCrossan certified a 10.69 percent DBE commitment, and McCrossan should have been awarded the contract “unless MnDOT had rejected all bids.”

MnDOT’s Office of Civil Rights determined March 11 that McCrossan’s bid was not responsible, according to the lawsuit. MnDOT denied the company’s request for a contested case hearing under state rules, but named an administrative panel to review the March 11 decision, the lawsuit added. That review panel upheld the earlier ruling March 27.

McCrossan protested the decision April 1 and MnDOT Commissioner Charles Zelle denied the protest April 12, the lawsuit said.

McCrossan’s attorney claims MnDOT violated federal law by applying DBE goals in the same way on design-build projects as it does on design-bid-build projects. The St. Croix Crossing project is a design-build project.

The suit further claims that a MnDOT consulting engineer recognized that good-faith effort DBE requirements and analysis used by MnDOT were “inappropriate in the design-build context.”

The lawsuit futher claims that MnDOT’s refusal to recognize McCrossan’s good faith efforts violates federal law and fails to “narrowly tailor the practices and procedures of its affirmative action program to achieve its stated goals.”

The lawsuit also claims MnDOT’s interpretation rules “forces proposers to engage in unethical ‘bid shopping’ and ‘bid chopping’” and is counter to federal law to encourage fair DBE participation in projects. The lawsuit also claims MnDOT “unconstitutionally” created a “defacto quota.”

The lawsuit also calls MnDOT’s action a violate of the 14th Amendment to the U.S. Constitution “because it relies on race-conscious criteria.” It said MnDOT treated the St. Croix Crossing DBE goal as a quota and the agency’s application of the DBE goal and measuring good faith efforts is “not narrowly tailored to meet a compelling government interest.”

Along with seeking an injunction against MnDOT proceeding with the MN 36 approach project using Ames/Lunda, the lawsuit asks the court to declare rejection of McCrossan’s bid unlawful; MnDOT’s application of DBE goals and measuring good faith efforts unconstitutional; an injunction against MnDOT applying the same “good faith” factors in design-build and design-bid-build proposals, and awarding McCrossan bid preparation costs, reasonable attorneys’ fees and other relief.

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