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Judge hears case of rail operator’s bid to keep T pact

But he questions MBCR attacks on the low bidder

A Suffolk Superior Court judge expressed skepticism Friday that the state’s commuter rail operator has legitimate claims to delay or overturn the MBTA decision to award the multibillion-dollar commuter rail contract to another firm.

After a two-hour court hearing, Judge Mitchell H. Kaplan said he would consider arguments made by Massachusetts Bay Commuter Railroad Co. attorneys, but he did not indicate when he would make a decision on the company’s request to halt the takeover of the system by Keolis Commuter Services, a transit company part-owned by the French government.

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Kaplan indicated that he was dubious of some of the arguments made by MBCR, which has alleged that the Massachusetts Bay Transportation Authority broke its own rules to award the commuter rail contract to Keolis despite the company’s failure to meet requirements set by the T.

“You think that, what — there’s some collusion here with Keolis to put the Commonwealth on the hook to give this state-owned railway in France a free ride?” Kaplan said at the end of a two-hour hearing. “I don’t even understand what you’re trying to tell me.”

Since early January, when MBTA officials awarded the eight-year commuter rail contract to Keolis, the lowest bidder by nearly $250 million, MBCR has been on the offensive, submitting an administrative protest to the T and filing suit in court, requesting an injunction to stop the takeover and allowing MBCR to continue running the commuter rail, or forcing the MBTA to redo the bidding process.

This week, MBCR also filed a complaint with the Executive Office for Administration and Finance — the agency that develops financial policies for the state — urging an investigation into the Keolis proposal to the MBTA and into the consulting company Transit Safety Management, listed as one of Keolis’s intended subcontractors.

In its proposal to run the system, Keolis listed Transit Safety Management as a women-owned business. Keolis is required to have 15 percent of its subcontractors be minority- or women-owned businesses.

Transit Safety Management is owned by Susan Madigan, who is also a full-time employee with the federal Transportation Security Administration, and MBCR has questioned whether she can truly oversee a company while she holds down a full-time job, alleging that her husband is the company’s de facto decision-maker.

“It appears that SNCF/Keolis deliberately chose to list TSM as one of just seven participating [diverse business enterprise] firms in an attempt to shore up a deficient DBE Plan and Program,” MBCR’s letter states.

Glen Shor, secretary of the Executive Office for Administration and Finance, said the agency will review the company’s status as a disadvantaged business enterprise to determine if action is necessary.

Keolis dropped its plans to subcontract with Transit Safety Management earlier this month, but Keolis spokesman Alan Eisner did not specify the reason. Eisner said the responsibility of verifying a company’s status as a disadvantaged business enterprise belongs to the state.

“Keolis expects and demands that all of its subcontractors and consultants adhere to any and all applicable state and federal requirements,” Eisner said.

Keolis is scheduled to take over operations of the commuter rail system on July 1, but that timeline could be derailed if Kaplan grants MBCR’s request.

But in court Friday, Kaplan appeared skeptical of many of MBCR’s charges about an unfair procurement process — that the T’s willingness to overlook some of Keolis shortcomings was a violation of rules of the bidding process — and questioned charges that the Keolis proposal was intentionally misleading. He called MBCR’s 91-page affidavit “full of hyperbole, and . . . full of hearsay.”

MBCR lawyers maintained that the T should not have selected Keolis as winning bidder if it met only some, not all, of the requirements set forth in the T’s request for proposals.

But MBTA attorneys countered that Keolis’s shortcomings were correctly weighed against its most important strength: a cheaper price tag.

“[MBCR officials] are treating an essay exam as if it were sudden-death multiple choice, where if you miss anything, you’re automatically out,” said Jonathan M. Albano, an attorney for the T.

Martine Powers can be reached at martine.powers@globe.com. Follow her on Twitter @martinepowers.
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