Judge clears the way for 35W bridge reconstruction

(AP) - Construction to replace the collapsed Interstate 35W bridge was cleared to start as scheduled on Thursday, after a Ramsey County judge declined to hold up the $234 million project.

Judge Edward Cleary on Wednesday rejected an attempt by two construction executives to freeze work on the site while they challenge the Minnesota Department of Transportation's contract with a team led by Flatiron Constructors of Colorado. The executives alleged that Flatiron won unfairly and sought to void the contract.

Cleary didn't give them much hope. Although he didn't rule on the merits of their case, his ruling suggested they are unlikely to succeed.

And he said the public's need to quickly replace the bridge - a Minneapolis artery that carried more than 140,000 vehicles a day before the Aug. 1 collapse - trumped their complaints about the process. Flatiron has pledged to finish the bridge by Christmas 2008.

The judge said the contract didn't have to go to the lowest bidder because the agency's process considered other factors.

"Since there is not enough evidence in the Court's mind to conclude that the contract is likely illegal, the more distinct harm of additional costs and delay to the public and direct harm to the Defendants outweighs Plaintiffs' potential harm," Cleary wrote.

But the Minnesota Department of Transportation didn't come out of the ruling unscathed. Cleary said the agency shouldn't have signed a contract with Flatiron on the same day technical scores for the four bidders were released to the public.

"By signing a contract with the successful bidder before releasing the underlying data that led to that decision, Mn/DOT cloaked the decision in secrecy," his ruling said.

Bob McFarlin, assistant to the state transportation commissioner, didn't quarrel with the ruling.

"We respect Judge Cleary's opinion on this issue," he said. "However, given the extraordinary daily economic impacts of delay, the need to move the project forward for purposes of submitting costs to the federal government for possible reimbursement, and simply the need to quickly reconnect the region's highway system, MnDOT felt a duty in the public interest to move forward as expeditiously as possible."

The decision removed a cloud over the construction project, said Thomas Vollbrecht, the attorney for Flatiron and partner Manson Construction.

"Flatiron is going forward to build the bridge as quickly and as safely as possible," Vollbrecht said.

The lawsuit against the Flatiron contract will continue, said attorney Dean Thomson, who represents construction executives Scott Sayer and Wendell "Tony" Phillippi.

Thomson said they haven't ruled out appealing Cleary's decision to a higher court, and will continue to make their case in Ramsey County court.

"If we're able to present additional evidence to the judge, we're confident we can change his preliminary evaluation," Thomson said.

Phillippi said he was disappointed with the decision and weighing his options.

A footnote in Cleary's ruling said Phillippi was providing subcontractor services on the bridge site, "apparently receiving a direct benefit from a contract he seeks to enjoin."

Phillippi said one of his companies helped assemble a crane on the site but he doesn't have any formal role as a subcontractor on the project. He said he felt compelled to sue over the project despite the cost and long odds.

The crux of Sayer and Phillippi's complaint was that the MnDOT skirted its own rules by giving Flatiron high technical scores on factors including aesthetics and safety. They said Flatiron came out better than the other bidders because its proposal didn't follow all the rules.

But Cleary dismissed that argument. He said a six-member technical review committee did not abuse its discretion by scoring Flatiron higher, even though its bid was $57 million more than the lowest bid and tied for the longest construction timetable.

The judge said the contract didn't have to go to the lowest bidder because the agency's process considered other factors.

"Apparent confusion over this issue has led some members of the public to believe that an award to the highest bidder was improvident at best and illegal at worst," he wrote in a footnote to the ruling. "Improvident, perhaps, but definitely not illegal under this statute."

(Copyright 2007 by The Associated Press. All Rights Reserved.)

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