Massachusetts Bay Commuter Railroad, the train company that in January lost its bid to continue running Boston’s commuter rail system, is entitled to try to undo the decision. But halting the entire transfer process while MBCR’s bid protest plays out, as the firm has now requested in Suffolk Superior Court, would be a highly disruptive step. The court should review MBCR’s request quickly, but shouldn’t halt the transition to Keolis, the new manager, without strong evidence of illegal conduct.
MBCR, perhaps gambling that it has nothing to lose, threw the kitchen sink at Keolis and the T in its protest and subsequent court filing, unloading hundreds of pages of accusations. Some of them seem unlikely to stick. For instance, MBCR accuses Keolis of a bait-and-switch because not all of the individuals named in the Keolis bid as potential managers are, in fact, joining the new management team. If MBCR can prove that Keolis knew all along that those individuals wouldn’t move to Boston, that could be grounds to invalidate the bid. But that’s a hard standard to meet. It’s a free country, and while a corporation’s bid can name the managers it hopes to install, it can’t oblige those individuals to take the job. The T clearly understood there would be personnel turnover at whichever company won the bid, and included in the contract a process to approve replacement staff. Keolis has followed that procedure to fill vacancies, according to MBTA general manager Beverly A. Scott.
The safety record of the two bidders was also a key criteria in evaluating them, and in its protest MBCR accused Keolis of omitting from its bid accidents the company experienced in its European operations. Keolis counters that it only listed accidents where investigators found they were at fault, and points out that MBCR also omitted European accidents from its bid. Indeed, an affiliate of MBCR’s majority owner, Veolia, was the operator of one of the trains involved in a deadly 2011 crash in Germany, a fact that wasn’t disclosed on MBCR’s submissions. MBCR’s contention that it only needed to provide its US record, while Keolis should have listed its European record because it lacks a lengthy operating history in the United States, doesn’t pass any common-sense test.
MBCR has also accused Keolis of leaving its bid incomplete in various other respects. One attention-grabbing, but misleading, claim is that Keolis failed to submit a complete safety plan. But, according to Scott, the T purposely allowed companies to submit incomplete plans, since that was the only way that firms that lacked the incumbent’s access to sensitive security information could compete.
Only one of MBCR’s complaints raises legitimate problems. E-mails show that an MBTA employee coached Keolis through one technical aspect of its application. But for the court to stop the transfer now, the judge needs to find more than just questionable decisions by a T employee: There has be a real likelihood the T violated procurement law, and a single e-mail chain is unlikely to prove that. Allowing the handover to continue wouldn’t prevent MBCR from continuing its official protests, but putting the transfer process on hold could create upheaval. MBCR can pursue its legal options — but giving them an injunction now would require the court to see a strong likelihood of success, and for the sake of riders that must be a very high bar.