- The Washington Times - Thursday, September 28, 2000

A U.S. district judge has ruled that Metro did not violate its own procurement rules in awarding a contract that plaintiffs said showed the transit agency turned a blind eye to the deterioration of its subway tunnels.

Senior Judge Louis F. Oberdorfer said in his Sept. 22 opinion that Metro's awarding of a contract to Aulson Inc. to replace corroded bolts and grout plugs in parts of the Red Line tunnels was not done capriciously.

Virginia-based EMS Inc. and Megaco Inc. brought the suit against Metro in August, claiming it awarded the contract to the lower-bidding, Massachusetts-based company based on flawed 1997 estimates of plugs and bolts that needed to be replaced.

The two local companies, which worked together to get the contract, also claimed Metro violated minority business practices in giving the contract to Aulson.

Judge Oberdorfer disagreed on both counts, but his opinion notes that Metro may not have followed its procurement rules to the letter. The judge said it "would be unfair to Aulson to penalize it for following the set of rules it was given."

Metro spokesman Ray Feldmann issued a statement saying Metro officials are "very satisfied" with the summary judgment, adding that work will now be able to be done on the tunnels.

Judge Oberdorfer said even if EMS and Megaco provided more accurate estimates on the number of plugs and bolts that needed to be replaced, it should not be assumed that Metro was in the wrong.

"[Metro] cannot be considered irrational or in violation of law simply because it relied on its own surveys in awarding this contract, even if those surveys were in fact inaccurate or seriously flawed," Judge Oberdorfer said.

The plaintiffs' attorney, Whitney Adams, said she is considering filing an appeal.

Miss Adams said Judge Oberdorfer's opinion was disappointing but not unexpected since many judges typically defer to the agency awarding a contract. She contended that this case was different because the public's safety was at stake and was not just another "bid protest."

"It's disturbing the court felt it couldn't look at the serious corrosion problem," Miss Adams said. The judge "basically said they could rely on a bad estimate if they wanted to."

Miss Adams had argued before Judge Oberdorfer and in court documents that, by awarding Aulson the $5.9 million contract, Metro actually wound up paying more for plugs and bolts because of poor estimates done in 1997 and 1998.

Under Aulson's bid, Metro would pay $200 to replace each grout plug and $50 per bolt. Miss Adams' clients would have replaced the grout plugs for $25 each and bolts at $15 apiece.

Metro's studies showed 7,774 bolts and 793 grout plugs inside Metro tunnels needed to be replaced because of extensive corrosion.

Miss Adams said Lloyd Smith, a corrosion specialist who used to work for the Federal Highway Administration, estimated 29,200 bolts and 15,800 grout plugs needed replacement.

Miss Adams told Judge Oberdorfer the "outdated" figures Metro used to award the contract to Aulson could cost the agency almost $4 million more in repairing the tunnel sections.

"If you think in quantities, the costs become astronomical," she said during the court appearance.

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