The passionate opposition of asphalt huggers to building a rail system in one of the most linear cities in the Republic is nothing compared to the wounds rail supporters inflict on themselves.
Like the young man who kills his parents and then throws himself on the mercy of the court because he's an orphan, rail foes have driven costs up by delaying the project, then complained of rising costs. And they've portrayed rail as a non-solution by applying standards they never apply to highways.
But the monkey wrenches they've hurled are pretty lightweight compared to the spanner that has been thrown into the works by disqualifying one of three bidders in a way that left room for a court appeal.
The possibility of reconsidering the bids of Anseldo Breda, Bombardier and Sumitomo arises mainly because Breda's parent company is having a spot of financial trouble and has considered spinning off Breda as not part of its core business.
Sumitomo objected to the decision to award the contract to Breda but said it would not file a court appeal, contenting itself merely with extending its price offer for 30 days, apparently at the city's request, in case Breda is compelled to drop out.
Bombardier, which was disqualified despite sending in what some would argue was the best bid, did file a court appeal, but today it opened a new channel by sending a letter directly to members of HART, the Honolulu Authority for Rapid Transportation, extending its own price and inviting reconsideration.
Let me start by saying all three companies have plenty of experience with rail transit systems and all three have spent a lot of money studying Honolulu and laying groundwork for doing the system. If any of the three wears a black hat I am unaware of it.
"Bombardier hereby extends the validity of its proposal through October 31, 2011," writes Andrew Robbins, vice president for business development of Bombardier Transportation. "Bombardier will not change the price in this proposal."
The most important part of an eight-page letter comes in the middle of page five, after a civil but passionate argument that it was unfair and bad for residents to disqualify Bombardier over a single sentence that was seen as setting a special condition, without giving the company the opportunity to remove it.
"Bombardier hereby waives the 'condition' in its proposal relating to liability exclusions that the City believes is contained therein," Robbins writes. "The Hawaii Procurement Code clearly permits the withdrawal of any such 'conditions' prior to the City being compelled to disqualify a proposal."
Bombardier echoes Sumitomo is pointing out that most of the funding won't be finalized, so there is time to "get this right."
Bombardier asserts that the true cost of the bids works out to $1.44 billion for Bombardier, $1.63 billion for Breda, and $1.73 billion for Sumitomo.
"When we examined the public file documents shortly after Mayor Carlisle made the award announcement on March 21," Robbins writes, "we were shocked to discover that the disqualification of our proposal swept away what would have been the winning bid."
The disqualification was laid on a single sentence in the Bombardier proposal which Robbins characterizes as "attempting to clarify a poorly drafted provision in the RFP [request for proposals]. The provision involved the City adding language to create an overall cap on liability but then leaving in language that circumvented the cap rendering it meaningless." Robbins says city officials pointed out other areas that could be improved but never mentioned this clause could be viewed as "creating a conditional proposal."
When Bombardier appealed, outside counsel for the city argued that Bombardier conditioned its proposal to gain a price advantage. Robbins denies it and gripes that no evidence was ever presented to back up the theory, which he damns as "clever."
So now what?
The city finds itself in the position of trying to do the best thing for you while defending what it's done already, knowing that whatever it does, or doesn't do, one or more of the bidders will complain, and everything that is said about this, regardless of outcome to the bidders, will provide more grist to the gridlockers who want to kill the project.
Auwe, what a mess.