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Losing commuter rail bidder MBCR sues to block MBTA deal with Keolis

The MBCR is trying to block Keolis from taking over the state's commuter rail system.

The MBCR is hell bent on continuing to manage the MBTA's commuter rail system. (matthrono/Flickr) The MBCR is hell bent on continuing to manage the MBTA's commuter rail system. (matthrono/Flickr)

Two months after TheMassachusetts Bay Commuter Railroad Co. lost its bid to carry on managing the region's commuter rail system, the company is heading to court to ask a judge not to let the winning bidder, Keolis Commuter Services, take over on July 1.

The MBCR filed the injunction in Suffolk Superior Court Thursday on the basis that the 8-year, $2.686 billion Keolis contract was allegedly awarded due to favoritism.

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In its court filing, MBCR also cites "irreparable harm" created by the MBTA’s decision to sign on with Keolis, and claims the MBTA refused to review the MBCR’s formal protest "in a timely manner."

The request for injunction follows the discovery of what the MBCR describes as "multiple, serious deficiencies and errors" in the public procurement documents, including a $428 million understatement of actual commuter rail costs in the MBTA’s Independent Cost Estimate.

Those costs include guaranteed annual wage benefits worth nearly $5,000 per employee and $10 million in existing costs for parts and materials that are required to maintain trains, the company said, estimating the actual bid price falls more than $500 million below the "realistic price of operating the system."

“The procurement process was deeply flawed; the MBTA failed to put the bidders on an equal footing, made arbitrary and capricious decisions, failed to follow the terms of the bid documents or do minimum due diligence, and was influenced by misrepresentations made by SNCF/Keolis,” the filing states.

Alan Moldawer, an attorney for MBCR, said in a statement released via email that
the holes in the MBTA’s procurement process "are big enough to drive a locomotive through.”

“Every bid for a government contract must adhere to a strict, legally proscribed process, but the MBTA ignored its fundamental responsibility to provide a level playing field to both bidders and overlooked obvious deficiencies that allowed SNCF/Keolis to stay in the bid process.”

MBTA Spokesman Joe Pesaturo told the Boston Globe that if the MBCR proceeds to seek an injunction, it will do so "in blatant violation" of the procedural rules to which the company agreed.

The injunction would also violate the contractual promises it made to the T under its current contract, Pesaturo said.

Follow Morgan Rousseau on Twitter: @MetroMorgan
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