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MBCR asks T to release rail contract documents

Wants to appeal win by Keolis

The company that runs the state’s commuter rail system, still smarting from its surprising loss last week in a bid for a new multibillion-dollar contract, is taking its fight to the courts, in what could be a bruising legal battle for the lucrative operating rights.

The Massachusetts Bay Commuter Railroad Co. asked a Suffolk County judge Tuesday to order state officials to release public documents tied to a French rival’s winning bid for the contract, which takes effect in July.

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The complaint, which MBCR filed in Suffolk Superior Court, also seeks an extension of a Jan. 21 deadline to appeal the award that went to the winning company, Keolis.

MBCR wants an extension of at least 10 days after it receives the documents at issue. The company is also seeking a delay to the start of the contract until “after MBCR’s appeal of the [MBTA]’s award of the contract has been adjudicated by the [MBTA] and MBCR has had a reasonable period of time to seek further relief from the courts, if appropriate,” the complaint said.

In addition, MBCR seeks an injunction barring the Massachusetts Bay Transportation Authority from releasing what it says is confidential information regarding the financial statements of two of its affiliates, which the rail operator contends are not relevant to assessing the quality of its bid.

The MBTA fired back in a statement Tuesday night. “The MBTA, which is committed to continuing the process that has been open and transparent, has already posted key procurement documents on its website,” T spokesman Joe Pesaturo said. “The MBTA will continue to work to make much of the record of this procurement widely available. As soon as tomorrow, the MBTA expects to post to its website an unredacted copy of the successful proposal.

“It is worth noting that MBCR has been resisting this effort at transparency, insisting that the MBTA is obligated to keep key parts of the MBCR submittal confidential and asking a court to prohibit the MBTA from making disclosures in response to public records requests.”

A Keolis spokesman declined to discuss the complaint.

Though MBCR, which has run the commuter rail since 2003, was widely thought to have the inside track on the contract in months leading up to the selection from the state Department of Transportation’s board of directors, the panel selected Keolis last week on the recommendation of MBTA general manager Beverly A. Scott.

The French company’s bid for the state’s largest-ever operating contract was 6 percent lower than MBCR’s, and Scott said last week that the agency will save $254 million over the life of the deal.

State officials said the price tag will be $2.68 billion over eight years, with the possibility for two two-year extensions that could bring the total to $4.3 billion.

Keolis will be paid $304 million in the first year of its contract. This year, MBCR was paid $316 million for base operations.

The Massachusetts contract will give Keolis its largest US system. Some transit specialists suggested Keolis may be willing to operate the system with a smaller profit margin in order to have a major American commuter rail system in its portfolio, a feather in its cap that could open doors to other high-profile transit contracts in North America. Keolis currently runs the Virginia Railway Express, a commuter rail service in the suburbs of Washington, D.C., with 32 trains and 21,000 passengers daily.

“Following the Jan. 8 meeting of the MassDOT board of directors, the MBTA promised the immediate release of the proposal submitted by” Keolis, the MBCR said in a statement Tuesday. “Despite numerous public statements promising openness and transparency, the MBTA has yet to release the document.”

The company added in the complaint, “Granting MBCR relief also will protect the public interest in enforcing the Public Records Law and preserving the integrity of the public procurement process for a public transportation contract involving the expenditure of several billion taxpayer dollars.”

Martine Powers of the Globe staff contributed to this report.
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