MDOT had planned to seek the authority board’s sign-off this month before taking the contract to the state’s Board of Public Works for final approval in May. State law requires that the General Assembly have 30 days to review the contract before the final vote.
The state announced in February it had selected Australian firms Transurban and Macquarie for a one-year “predevelopment agreement” to design the lanes. That deal also would give them the right of first refusal for a 50-year contract worth billions to build the lanes and finance their construction in exchange for keeping most of the toll revenue.
MDOT spokesman Terry Owens said the Maryland attorney general is still reviewing the bid protest. He declined to elaborate on the timing of any delays.
In project bid documents, MDOT said protests first would be decided by the state’s contracting officer, and any appeals would go to the state transportation secretary. If the protester is unsatisfied with the state’s ruling, it could then take its case to court.
While a court case could take months to resolve, MDOT said it “reserves the right” to pursue a contract under challenge if the MDOT secretary determines that “proceeding without delay is necessary to protect substantial state interests.” The Board of Public Works also may execute such a contract if doing so “without delay is necessary to protect substantial state interests,” according to state regulations.
It’s unclear what constitutes “substantial state interests” or whether the three-member Board of Public Works would want to consider a controversial contract while it remains under legal scrutiny. Agencies typically don’t seek board approval unless they know they have the necessary two votes.
The swing vote on the Board of Public Works is expected to come from Comptroller Peter Franchot (D). Hogan, who also sits on the board, has championed the HOT lanes project as part of his “traffic relief plan” for the Washington suburbs. The board’s third member, Treasurer Nancy K. Kopp (D), has previously opposed the project.
Some project critics have said it’s premature to partner with a private entity before the state completes the federally required review of the plan’s potential environmental and community effects. Under the agreement, the state would have to reimburse the private team up to $50 million of its predevelopment costs if the state cancels the project or it doesn’t receive federal environmental approval.
Some opponents also have questioned whether Transurban had a leg up on the competition because of its toll lane projects in Northern Virginia.
Officials have declined to say which companies lodged the protest or what wrongdoing they have alleged. However, the consortium of Spanish firm Cintra and London-based John Laing Investments is believed to have filed it because the other unsuccessful bidder has denied doing so.
Under the MDOT plan, the Beltway and I-270 would get two HOT lanes in each direction. The first phase, which Transurban and Macquarie were selected to develop, would include the Beltway from the Virginia side of the American Legion Memorial Bridge to the I-270 spur and then up I-270. The regular lanes, which would be rebuilt, would remain free.
Project supporters say Maryland needs to expand both highways to alleviate chronic traffic congestion, keep up with coming growth and remain economically competitive with Northern Virginia. Opponents, including environmental groups and Montgomery County planners, say the plan would damage streams and public parkland, promote auto-dependent sprawl development and do too little to expand mass transit.