Braunstein filed suit against ADOT, Jimenez, Romero, and Aztec in May 2005, before the freeway design work had even begun.
Young-Min Yoon
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He'd tried to protest the contract internally, but didn't get anywhere. In the end, the agency told him he couldn't appeal formally because he didn't actually submit his qualifications for the work.
He couldn't do that. Only the big nationals had the qualifications. But that didn't seem to matter.
So Braunstein's second suit focused less on his own qualifications and more on ADOT's lack of internal controls.
The suit asked Judge Marc Aceto to look at the big picture: ADOT was immune from the state procurement code. If it didn't use federal funds, it didn't have to follow the federal rules.
So what rules did it follow? Didn't the agency have to have some rules to govern the contracts it awarded?
He also sued the department and three of its staffers for allegedly violating the state's conflict-of-interest statutes, as well as antitrust laws.
So far, Aceto has not been especially sympathetic, but he hasn't tossed the suit out, either. The litigation continues.
But ADOT finally may be forced to address the situation. Romero's daughters' employment may well be, legally, the most serious matter facing the department.
After all, Romero sat on the selection panel, and helped award contracts, to a company that employs his daughter. That action doesn't just look bad -- it may violate the law.
After New Times requested Romero's personnel file and began making inquiries, the longtime employee abruptly left ADOT on May 15.
Romero's lawyer, James Belanger, chairs the white collar and corporate criminal defense group for the downtown powerhouse firm Lewis and Roca. (He also has an extensive practice in bankruptcy and corporate compliance.)
Belanger said it would not be appropriate to comment on Romero's departure from ADOT. In a written statement, he called his client "a good guy who has gone through a rough patch" and noted that the legal questions are more complicated than they first appear.
"The issue isn't simply whether or not his daughter had a job; it's whether there was a non-remote, substantial interest. Those are terms of art that are very specifically defined in the statutes. The bottom line is that Jim is defending the lawsuit. He absolutely believes he has done nothing wrong and he expects to prevail on the merits."
Romero had worked for the state almost 21 years.
In five years, he would have been eligible for 91 percent of his state retirement benefits, according to state records.
By retiring this month, he will receive nothing for five years. It will take him another 14 years to get full benefits.
There is yet one more oddity in the contracts that ADOT approved for Proposition 400 money. Once again, it involves utility locating.
The second phase of locating work is called "potholing": That's where they actually dig the holes to make sure the maps are correct. Very rote stuff, but again, a good, steady source of money.
Because potholing is a manual process, the state requires any firm doing the work to have a license with the Arizona Registrar of Contractors. That requirement caused a minor flap during Braunstein's first lawsuit, when he discovered that Aztec didn't even have the license until three months after Jimenez decided to give the company ADOT work.
But the requirement cropped up again as ADOT set the scope for the design/management contracts in the fall of 2004.
Firms like DMJM don't have contracting licenses. And the law was clear: They couldn't win contracts that include potholing, even if they planned to use licensed subcontractors.
Even if everything else was getting bundled, ADOT would have to handle the potholing as a separate contract, like it used to do.
The agency made its intent clear. At a pre-submittal meeting, James Romero himself specifically told the companies in attendance that potholing would not be part of the bundled work, according to an audio tape of the meeting.
Just one day before the national management companies' proposals on the bundled work were due, ADOT faxed over an amendment.
Potholing would be included. They were pushing through a new state law that would make it okay. (State Engineer Elters, who joined ADOT after the contracts were inked, says he's not familiar with the details of why the amendment was made, although he says the decision was not unusual.)
It was, of course, far too late for any companies with potholing experience to get themselves added to the management firms' proposals.
"We were told this wouldn't be a part of the contract," says one engineering company employee, who asked not to be identified because he fears it would hurt his firm. "When we got the amendment, we contacted everybody, but they'd already contracted with people who could do the work. We basically got screwed.
"It had a huge impact on the people who weren't already on the teams," the employee adds. "It's a weird way to do business."
Paul Braunstein, too, lost his chance to get any potholing work. But ADOT's last-minute change did benefit one firm.
One firm, after all, was already on the list for all three winners. And, by that time, the firm had its potholing license.
Aztec Engineering wouldn't have to compete through the normal process. Aztec, after all, had connections, and at ADOT, that can mean everything.
Unless, of course, Paul Braunstein gets his way.
