Barriere Constr. Co. v. Parish of Tangipahoa

259 So.3d 458

BARRIERE CONSTRUCTION CO., L.L.C.

v.The PARISH OF TANGIPAHOA and Beverly Construction Co., L.L.C.

2018 CA 0279

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: September 24, 2018

Michael R.C. Riess, Michael D. Lane, New Orleans, LA, Counsel for Plaintiff/Appellant, Barriere Construction Co., L.L.C.

Clifton T. Speed, Greensburg, LA, Counsel for Defendant/Appellee, Parish of Tangipahoa

Maura Z. Pelleterri, Amy S. Malish, New Orleans, LA, Counsel for Defendant/Appellee, Beverly Construction Co., L.L.C.

BEFORE: WHIPPLE, C.J., McCLENDON, and HIGGINBOTHAM, JJ.

WHIPPLE, C.J.

In this public bid dispute, the rejected bidder, Barriere Construction Co., L.L.C. ("Barriere"), appeals a judgment of the trial court denying its request for a preliminary injunction, seeking to enjoin and prevent the award or execution of a contract for a road improvement project to any bidder other than Barriere. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On June 30, 2017, the Tangipahoa Parish Government (hereinafter referred to as "the parish government") issued an invitation to bid in connection with a project, entitled "Club Deluxe Road Overlay and Widening" (hereinafter referred to as "the project"). The "Information for Bidders" page provided, in pertinent part, that:

1. Receipt and Opening of Bids: The Parish of Tangipahoa (herein called the "Owner"), invites bids on the form attached hereto. All blanks must be appropriately filled in. [...]

* * * *

5. Determination of Unit and Extended Prices: In unit price bids, the total amount bid shall be in the sum of the correct extensions of the unit price bid on each item of work multiplied by the approximate quantity of work shown for the respective item. Each extension shall be carried to one hundredth of a dollar, and the last digit in the extension (or cents' place) shall not be rounded off.

(Emphasis added.)

Attached to the invitation to bid was a document titled "Louisiana Uniform Public Work Bid Form," which included a line for bidders to state their "total base bid." The form further specified that the total base bid was "[f]or all work required by the Bidding Documents (including any and all unit prices designated ‘Base Bid’ but not alternates) the sum of[.]" Additionally, attached to the invitation to bid was a "Unit Price Form," specifying certain quantities of required materials for the project and specifying certain work that was required for the project, wherein bidders were required to fill in the unit price for such items and the "unit price extension" for such items, defined as quantity times unit price.

On August 25, 2017, the parish government received two timely bids for the project, one from Beverly Construction Co., L.L.C. ("Beverly") and the other from Barriere. Beverly's bid provided that its total base bid amount was $5,456,580.00 and $924,848.00 for the alternate bid, resulting in a bid total of $6,381,428.00. Barriere's bid was $6,400,472.50 for the base bid and $926,735.00 for the alternate bid, resulting in a bid total of $7,327,207.50.

However, on August 28, 2017, Beverly sent a letter to the engineer acting as the parish government's representative for the project, stating that there was a "clerical error" on its bid form, namely, that the total base bid amount of $5,456,580.00 was incorrect. Beverly advised that the total base bid should have read $6,232,566.00, "per [its] units prices,"¹ and that the alternate bid price of $924,848.00 was correct, thus resulting in a bid total of $7,157,414.00. The letter further noted that even after the correction of this clerical error, Beverly's corrected base bid price of $6,232,566.00 still made it the lowest bidder. In support of its position that the parish government should consider the bid amount of $6,232,566.00 as a competitive and successful bid, Beverly cited " LSA-R.S. 38:2212 6(c)[sic]," which provides that "[i]f the public works requires unit price bids and there is a discrepancy between the base bid total and the sum of the extended unit prices, the unit price bid shall govern."See LSA-R.S. 38:2212(B)(6)(c).

Upon learning of Beverly's August 28, 2017 letter, Barriere notified the parish government that it would protest the awarding of the contract to Beverly, based on Barriere's belief that Beverly's bid was irregular and non-responsive. According to the parish government, prior to awarding the contract, the parish government consulted informally with an assistant attorney general and an engineer, and obtained a written legal opinion from the parish's district attorney's office. Thereafter, by resolution dated September 11, 2017, the parish government accepted the bid of Beverly at the stated amount of $6,232,566.00 as the lowest bid and awarded Beverly the contract.

However, prior to the signing of the contract between the parish government and Beverly, Barriere initiated this lawsuit, naming the parish government and Beverly as defendants. Barriere claimed that the project should not be awarded to Beverly because Beverly's bid was irregular and non-responsive, and the parish government had illegally exercised its discretion by modifying Beverly's written bid. Specifically, Barriere argued that Beverly's bid was non-responsive because the "Information for Bidders," as provided by the parish government to respective bidders, states that all blanks must be "appropriately" filled in and that the total amount of the bid shall be the sum of the "correct" extension of the unit prices, and that Beverly had failed to comply with these bid requirements. Barriere sought injunctive relief, seeking to enjoin and prevent the award or execution of the contract for the project to any bidder other than Barriere. Additionally, Barriere asked for an order of mandamus, declaring that Barriere, as the lowest responsible and responsive bidder, be awarded the contract, and further declaring that any contract awarded to, or signed with, any bidder other than Barriere be declared null and void. In the alternative, Barriere sought damages for loss of profits that it would have earned had it been awarded the contract for the project.

The trial court issued a temporary restraining order, enjoining the parish government from awarding a contract for the project to any bidder other than Barriere, and scheduled a hearing on Barriere's request for injunctive relief. Following a hearing on Barriere's request for injunctive relief, the trial court rendered oral reasons for judgment, denying the preliminary injunction. The trial court stated that LSA-R.S. 38:2212(B)(6)(c) was "the factor that swayed" the court, and moreover, in the instant matter, there was not a withdrawal or re-submittal of the bid, but rather a clarification of the bid in accordance with (and as permitted by) subsection (B)(6)(c) of LSA-R.S. 38:2212.

In conformity with its oral reasons for judgment, the trial court signed a judgment on October 10, 2017, denying Barriere's request for a preliminary injunction. From this judgment, Barriere appeals² , asserting the following assignments of error:

(1) The trial court erred in concluding that certain mandatory requirements stated in the bidding documents were waivable.

(2) The trial court erred in concluding that the parish government has discretion under Louisiana's Public Bid Law to waive certain mandatory requirements stated in the bidding documents.

(3) The trial court erred in its interpretation of LSA-R.S. 38:2212(B)(6)(c).

APPLICABLE LAW

This case is governed by Louisiana's Public Bid Law, as set forth in LSA-R.S. 38:2211 through 38:2226. The Public Bid Law is a prohibitory law founded on public policy that mandates that all public construction contracts of major significance be let to the lowest responsible bidder. Gilchrist Construction Co. LLC v. East Feliciana Parish Police Jury, 2012-1307 (La. App. 1st Cir. 7/11/13), 122 So.3d 35, 39. The Public Bid Law serves the dual purposes of (1) eliminating fraud and favoritism, and (2) securing free and unrestricted competition among bidders, thereby avoiding undue or excessive costs. Gilchrist, 122 So.3d at 39. The provisions and requirements of the Public Bid Law, as well as those stated in the advertisement for bids and those required on the bid form, shall not be considered as informalities and shall not be waived by any public entity. LSA-R.S. 38:2212(B)(1) (formerly LSA-R.S. 38:2212(A)(l)(b)(i), see Acts 2014, No. 759, § 1). No public work may be done except as provided in the Public Bid Law, and any contravention of its provisions renders the resulting contract null and void. LSA-R.S. 38:2220. In this sense, the law severely curtails the discretion of the public entity, thereby ensuring a level playing field for all bidders and a fair and equitable means by which competing bids might be evaluated to determine the lowest responsible and responsive bidder. One bidder cannot be provided an advantage over another bidder due to a waiver. Gilchrist, 122 So.3d at 39.

ANALYSIS

The thrust of Barriere's assignments of error is that the trial court erred in finding that LSA-R.S. 38:2212(B)(6)(c) absolves Beverly for the alleged defects in its bid and allows Beverly to escape the well-established jurisprudential and legislative rule that a public entity may not waive the bid requirements, regardless of whether a requirement is substantive or non-substantive.³ Barriere contends that under the facts of this case, subsection (B)(6)(c) of LSA-R.S. 38:2212, which states that the unit price bid shall govern if there is a discrepancy between the base bid total and the sum of the extended unit prices, conflicts with the express language of subsection (B)(1), which, as previously stated, provides that the provisions and requirements of the Public Works Act and those stated in the bidding documents shall not be waived by any entity. Accordingly, relying on the well-established rule of statutory construction that "all laws...