Disqualified Honolulu rail bidder Bombardier has asked the Federal Transit Administration to review its rejection and will also file a court challenge to the decision, the company announced Monday.
“Bombardier continues to believe that it was unfairly and improperly disqualified from the award for the Core Systems Contract of the Honolulu Rail Project and in the process its lowest price, best value proposal was pushed aside and denied to taxpayers,” spokesman Wally Zimmerman wrote Civil Beat in an email. “The result will be the needless waste of taxpayer funding over at least the term of the long-term, 18 year Contract.”
Bombardier Vice President Andy Robbins said the matter is of federal interest because the federal government is being asked to contribute $1.55 billion in New Starts funding for the project. He wants the FTA to terminate the contract.
“Of course the reason why we’re doing this is we really feel that we were mistreated,” Robbins said. “We were wronged and the taxpayers were deprived of the best value.”
A state hearings officer last month threw out Bombardier’s appeal of a decision by the city to disqualify the company. The $1 billion plus contract was awarded to Ansaldo. The same state hearings officer over the weekend rejected an appeal by the other losing bidder, Sumitomo, which also could file a court challenge.
Robbins characterized Senior Hearings Officer David Karlen’s written rulings as “legal maneuvers” that don’t serve taxpayers.
Bombardier in a written statement Monday said it wants the FTA to look into how the city didn’t follow “both State and Federal procurement code by never conducting meaningful discussions with Bombardier about specific language in its proposal.” The company says it was unfairly disqualified because it had a different interpretation of the liability arrangements laid out in the Request For Proposals and the city hadn’t done enough to make sure there was no misunderstanding.
The letter pointed to Section 1b., Chapter VII, of the FTA’s Circular 4220.1F. That section of federal rules allows — but does not require — the agency to consider a protest if federal law is violated. Violations of state or local laws are to be referred back to state or local agencies with jurisdiction.
“FTA will not consider every appeal filed by a protestor of an FTA recipient’s protest decision merely because a Federal law or regulation may be involved,” the rules state. “Instead, FTA will exercise discretionary jurisdiction over those appeals involving issues important to FTA’s overall public transportation program.”
Bombardier also says it will file an appeal with the Circuit Court, claiming that the hearings officer made mistakes in his written summary judgment throwing out Bombardier’s appeal.
Robbins said he doesn’t think the appeals will delay the project at all because the bulk of federal funding isn’t expected until next year at the earliest.
“I don’t think we’re delaying anything,” he said. “This is a huge decision for the city. Get it right. I think there’s time to get it right.”
A spokeswoman for the Honolulu Authority for Rapid Transportation referred questions about ongoing litigation to the Corporation Counsel. A message left for the deputy city lawyer who has been handling the rail project was not immediately returned.