Judge rejects MBCR’s request to block commuter rail changeover

A Suffolk Superior Court judge has denied a request by the Massachusetts Bay Commuter Railroad Co. to block the state’s lucrative commuter rail deal, clearing the way for the T to transfer control of the region’s commuter rail system to a new company.

The decision by Judge Mitchell H. Kaplan, released Thursday, appears to be the final salvo in the legal battle between the T and MBCR, the company that has operated the system since 2003 but was recently ousted in favor of Keolis Commuter Services.

“There is nothing in the record before the court that supports MBCR’s contention that the MBTA acted irrationally in awarding the contract to Keolis,” Kaplan wrote.

MBTA general manager Beverly A. Scott announced in January that she had decided to award an eight-year, $2.68 billion contract to Keolis, an international transit company owned by the French national railroad that is slowly making inroads into the US market. Keolis is scheduled to take control of the system July 1.

Since the announcement, officials at MBCR have fought to quash Keolis’s takeover and force the Massachusetts Bay Transportation Authority to change or reconsider its decision.

The company filed an administrative appeal with the T, which was rejected by the agency’s chief procurement officer, and filed a request for an injunction in Suffolk Superior Court.

MBCR lobbed a string of accusations, contending that Keolis had submitted a proposal rife with shortcomings and inaccuracies and that the MBTA failed to ensure that Keolis met the agency’s requirements to be considered an acceptable commuter rail operator.

In response, T officials have maintained that they had the legal right to waive certain requirements in pursuit of the best bidder. If the T extends the length of the contract to 12 years, the maximum possible, Keolis’s overall price will be $254 million lower than MBCR’s bid.

At a court hearing two weeks ago, Kaplan appeared skeptical of many of MBCR’s claims and suggested he did not believe the company had much evidence to back its arguments.

His 21-page decision confirmed that he did not think much of MBCR’s contentions and that he did not think an injunction was warranted that would suspend Keolis’s planned takeover of the system and its 2,000 employees in time for the July 1 deadline.

“Protection of the public interests seems to mitigate against the issuance of an injunction that will disrupt these efforts and delay the benefits that the MBTA believes the public will enjoy under the new contract,” Kaplan wrote.

E-mail communication between the T and Keolis that MBCR viewed as unethical turned out to be, in Kaplan’s view, “seemingly inconsquential.” Addressing MBCR’s concerns about its competitor’s management team and financial standing, Kaplan added that he believed the T’s bidding process included language that allowed the agency wiggle room in rating and assessing the quality of each company’s proposal.

“This was just the type of value judgment that the MBTA properly reserved for itself in the [request for proposals] when it expressly stated that it could waive weaknesses and consider strengths in assessing each proposal and determining which provided the best value,” Kaplan wrote.

MBCR spokesman Scott Farmelant said the company was “deeply disappointed” by the judge’s ruling, insisting that arguments made by T attorneys suggested the transit agency was more concerned with price than the quality of the bids.

“It is discouraging that the T awarded a multibillion-
dollar contract to a foreign governmental agency, one with virtually no US railroad experience, that submitted an incomplete, misleading proposal,” Farmelant said.

He did not rule out the possibility that the company will file an appeal, but he suggested that the firm will seek to orchestrate a smooth handover to Keolis.

“Moving forward, MBCR is focused on the seamless transition of commuter rail operations and management to the next contractor,” Farmelant said. “MBCR has remained in close contact with the MBTA, providing documentation for all related tasks that have been completed or are underway.”

Officials from the MBTA and Keolis both said they were pleased with the judge’s decision.

“We are moving full steam ahead toward a new era in commuter rail service,” MBTA spokesman Joe Pesaturo said.