Let Tri-Rail make case on big contract

Gov. Rick Scott wants to end state funding for TriRail. The Legislature should be less quick to act.

The flashpoint is the decision last week by Tri-Rail’s governing board — the South Florida Regional Transportation Authority — to award its seven-year, $511 million operating contract after eliminating all of the six bidders except one. Florida Department of Transportation Secretary Jim Boxold responded by warning that the move could jeopardize the $42 million Tri-Rail expects from the state next year for operating expenses. This week, Scott cut the money from his budget.

Though a key state senator said he is “deeply concerned” — and the losers certainly will challenge the award — the Legislature should not cripple Tri-Rail. The 72-mile line from Miami to West Palm Beach carries 14,000 riders a day. That option will become more attractive as Interstate 95 and the Florida Turnpike get more crowded and more costly. Tri-Rail also plans to expand commuter service to the Florida East Coast Railway track — the Coastal Link — in conjunction with the Brightline high-speed passenger service.

Palm Beach County Commissioner Steven Abrams is the transit authority’s vice-chairman. In an interview with the Sun Sentinel Editorial Board, Abrams said, “The only thing that those who disagree (with the contract decision) rest their hat on is, ‘Something seems to be amiss.’ Admittedly, the optics are not the best. I get it.

“But I also get that no company wants to not be selected, and will pull out all the stops” to lobby for a change. Four companies now share the work. Under the new contract, Dallas-based Herzog Transit Services would do everything — operations, train and station maintenace and dispatch.

Optics aside, there is evidence that Tri-Rail made the right call.

The losing companies claim that Tri-Rail’s staff wrongly disqualified them, and note that their bids were lower than Herzog’s. Tri-Rail responds that the proposal required fixed, rather than conditional, bids. Only Herzog submitted one.

Abrams said Herzog came in higher — though still under a consultant’s estimate — because the company correctly included the cost of insuring subcontractors. The others didn’t, Abrams said, and Tri-Rail didn’t want to assume that expense and responsibility. Add potential change orders, and a competitor’s cost over seven years could have been higher than what Herzog bid.

In addition, price was just 20 percent of the criteria. Performance was a bigger factor. Tri-Rail needs to improve its on-time numbers, and the board believes that having a single contractor will increase accountability and service. Abrams correctly cites the problems that resulted when Palm Beach County spread transit service for the disabled among three companies.

A lawyer for Transdev, one of the disqualified companies, told us that Abrams and the others couldn’t have known the details of the bids — such as the insurance issue — because board members didn’t see the bids. The procurement staff did.

Abrams responds that the staff ’s job is to present the issues to board members, who set policy. Supporting his viewpoint is the ruling by a Broward County judge who rejected the companies’ request for an injunction to block Tri-Rail from awarding the contract.

Judge Barbara McCarthy had issued a temporary injunction so she could review the companies’ allegations that Tri-Rail had unfairly disqualified them. After hearing testimony, McCarthy ruled that Tri-Rail’s purchasing director could toss bids that didn’t follow the rules and that he consulted with lawyers before doing so. McCarthy called it “an honest exercise of discretion.”

More important, McCarthy refused to issue a permanent injunction because she concluded that the disqualified companies “still have not established a likelihood of success on the merits” of their case. The Transdev lawyer contended that McCarthy hadn’t ruled on the actual merits, but that argument amounts to a distinction without a difference. Besides, Transdev had praised McCarthy when she issued the temporary injunction.

What happens now? The new contract takes effect in June. Abrams said Tri-Rail needs to move quickly to finish work on the new Miami station — in the Brightline complex — that will be the first stop on the Coastal Link, which is expected to run as far north as Aventura.

Tri-Rail could ask for new bids, but all the bidders’ information has become public. Each company could seek to undercut the other with numbers that might or might not be real.

A better idea would be for legislators to hear from Tri-Rail administrators and board members. Given the size of the contract, companies will be hiring lobbyists and using any means possible to make their case. An impartial judge agreed with Tri-Rail. Facts also should determine the Legislature’s decision.