A Montgomery County circuit judge will decide by Thursday afternoon whether to block the state Board of Public Works from awarding a contract worth up to a half-billion dollars for rebuilding and operating two travel plazas on Interstate 95 north of Baltimore.
The contract vote, however, is scheduled for Wednesday morning.
Losing bidder HMSHost is seeking a 10-day restraining order to prevent the three-member board from sealing the deal while it reviews the winning bid documents of Areas USA. HMSHost, based in Bethesda, maintains that the Maryland Transportation Authority's bidding process was illegal and biased in favor of Areas.
Miami-based Areas USA contends it followed the rules and submitted a better proposal to build and run Maryland House in Harford County and Chesapeake House in Cecil County for 35 years.
Circuit Judge Eric Johnson said he was taking his time because the case is "not your typical" request for a temporary restraining order and because "the public interest is very, very high."
Lawyers for both sides expressed surprise at the delay, and the judge acknowledged that after a 30-minute closed-door meeting, neither party was happy with his decision.
However, Areas CEO Xavier Rabell said that "based on today's proceeding, the Board of Public Works is free to consider our proposal as scheduled."
In its lawsuit filed last week, HMSHost — which has operated the two Maryland travel plazas since 1987 — accused Areas of cooking its numbers so it could offer the state higher rent payments "based on an unachievable sales forecast."
For example, Areas is promising $8 million in rent the first year, which would require sales of $40 million at Chesapeake House alone — 330 percent higher than HMSHost realizes there now, the lawsuit said. The annual diesel sales projection by Areas for both plazas is 12.8 million gallons, 10 times historical levels, HMSHost said.
The Maryland Board of Public Works, which oversees procurement and approves contracts, consists of Gov.Martin O'Malley, state Treasurer Nancy K. Kopp and Comptroller Peter Franchot.
The Thursday deadline forces the transportation authority and the O'Malley administration to assess whether they want to risk trying to push through an agreement that might be shelved.
The state already is locked in a high-profile legal battle over whether two agencies complied with bidding requirements for the $1.5 billion State Center redevelopment plan for midtown Baltimore.
During the three-hour hearing in Rockville, HMSHost lawyer John Wolf accused the Maryland Transportation Authority of delaying the release of documents critical to its challenge. State officials began the process late Friday and resumed work Tuesday.
"We have the state running out the clock because the vote is [Wednesday]. They're stalling us," Wolf told the judge.
HMSHost officials say they believe the transportation authority allowed Areas to sweeten its offer by $65 million but did not extend the same opportunity to them. State officials said they negotiated a higher rate of return for the state only after Areas was chosen over HMSHost and a joint bid by Airport Plazas and Tishman Construction Corp.
A 10-day restraining order would give HMSHost time to collect and assess documents to determine whether Areas followed the request for proposals and whether the transportation authority adhered to its own regulations and state law, Wolf said.
"There is no need for a rush to judgment other than to hide out from prying eyes," Wolf said. "No hardship will befall the state ... or cost it great sums of money."
But Assistant Attorney General Stanley Turk said any postponement would disrupt the construction timetable, delay the state's first payment from Areas, and leave the contractor and subcontractors idle.
Turk said HMSHost was to blame for not submitting its best offer upfront.
"To come back now and say, 'We could have done better' — shame on them," Turk said.
The Areas USA proposal calls for an investment of $56 million to replace and operate the travel plazas — two of the nation's busiest. The state has estimated it could reap as much as $488 million over the length of the deal, which has been endorsed by two General Assembly committees and analysts at the Department of Legislative Services.
HMSHost proposed spending $75 million to build new plazas.
Turk told the judge that the proper place for HMSHost to make its case was before the Board of Public Works, not in a courtroom.
"There could be great damage to the Maryland Transportation Authority and the public itself," he said. "There can be only one award. It was arrived at fairly. It was conducted legally."