Boh Bros. Constr. Co. v. Parish of Jefferson

325 So.3d 500

BOH BROS. CONSTRUCTION CO., L.L.C.

v.PARISH OF JEFFERSON

NO. 20-CA-472

Court of Appeal of Louisiana, Fifth Circuit.

June 02, 2021

COUNSEL FOR PLAINTIFF/APPELLANT, BOH BROS. CONSTRUCTION CO., L.L.C., Michael R.C. Riess, New Orleans, Michael D. Lane, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, PARISH OF JEFFERSON, W. Reed Smith

COUNSEL FOR DEFENDANT/APPELLEE, COMMAND CONSTRUCTION, L.L.C., H. Bruce Shreves, Denise C. Puente, Peter S. Thriffiley, Jr., New Orleans

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

JOHNSON, J.

Plaintiff/Appellant, Boh Bros. Construction Co., L.L.C. (hereinafter referred to as "Boh Bros."), appeals the trial court's judgment in favor of Defendant/Appellee, the Parish of Jefferson (hereinafter referred to as "the Parish") and Intervenor/Appellee, Command Construction, L.L.C. (hereinafter referred to as "Command"), from the 24^th Judicial District Court, Division "H", which denied injunctive relief concerning a public bid for a public works project. For the following reasons, we reverse the trial court's denial of injunctive relief, enjoin the Parish from awarding the contract for the public work to the second-lowest responsive bidder, and find that Boh Bros. is the lowest responsive and responsible bidder for the public work contract. We also remand the matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On June 10, 2020, the Parish issued an Advertisement for Bids for Project No. 2017-031-RBP (hereinafter referred to as "the Project"), Proposal No. 50-00130667, for the construction of U-Turn lanes over new drainage box culverts on West Esplanade Avenue near the intersection of Harvard Avenue. The initial bidding documents contained the Louisiana Uniform Public Work Bid Form and the Unit Price Form. The Parish issued multiple addenda to the bid proposal and the bidding documents, one of which was "Addendum No. 2."

Within Addendum No. 2, the Parish included the following pertinent language:

This addendum shall be part of the Contract Documents as provided in the Instructions to Bidders.

The following items are issued to add to, modify, and clarify the Contract Documents. These items shall have full force and effect as the Contract Documents, and the cost involved shall be included in the bid prices.

Acknowledge receipt of the addendum by inserting its number on the Bid Form of the Bid Documents. Failure to do so will subject the bidder to rejection.

This Addendum No. 2 consists of a total of 34 pages including attachments.

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II. SPECIFICATIONS:

1. This addendum hereby revises and replaces the original Louisiana Uniform Public Work Bid Form and is attached hereto. Bidders must submit this revised, per Addendum No. 2, Louisiana Uniform Public Work Bid Form with their submission. Failure to do so will result in bid rejection.

Addendum No. 2 added two additional unit price items and one modified unit price item, which implemented a total of 88 unit price items.¹ Each of the 34 pages of the bidding documents for Addendum No. 2—the revised Louisiana Uniform Public Work Bid Form and the revised Unit Price Form—contained a header stating, "REVISED PER ADDENDUM NO. 2," and a footer stating, "ADDENDUM NO. 2," along with the corresponding page number.

The bids were opened for the Project on July 28, 2020. Vendors, including Boh Bros. and Command, submitted bids for the Project. Boh Bros. submitted a bid of $3,111,405.50. Boh Bros.’ bidding documents contained a Uniform Bid Form with the header and footer specified by Addendum No. 2 and a Unit Price Form without the header and footer. The Unit Price Form contained 88 unit price items. Command submitted a bid of $3,288,248. Command's bidding documents contained a Uniform Bid Form and a Unit Price Form with the header and footer specified by Addendum No. 2 on each of the pages.

The bid tabulation was sent to all of the bidders on August 11, 2020. Although it was the lowest monetary bidder, Boh Bros.’ bid was rejected as non-responsive by the Parish. The "Bid Analysis Listing" indicated that Boh Bros.’ Unit Price Bid Form pages were not submitted on the "REVISED PER ADDENDUM NO. 2" bid form. Command was announced as the lowest bidder and was awarded the Project by the Parish. Boh Bros. timely submitted its written protest to the Parish on August 13, 2020. The Parish rejected the protest on August 20, 2020, specifying that it rejected Boh Bros. bid because it was unable to confirm that Boh Bros. submitted the Unit Price Bid Form required by Addendum No. 2.

On September 10, 2020, Boh Bros. filed its "Verified Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction and Mandamus, or in the alternative, for Damages." In its petition, Boh Bros. argued that it was the lowest responsive and responsible bidder for the Project because its bid contained all of the unit prices and descriptions of work in conformity with the Louisiana Public Bid Law and bidding requirements; and, it was the lowest monetary bidder. It sought relief that would enjoin the Parish from awarding the Project to any other bidder and compel the Parish to award the contract for the Project to Boh Bros. as the lowest responsive and responsible bidder. On September 21, 2020, Command filed its "Petition of Intervention," alleging it was the lowest responsive and responsible bidder for the Project because it complied with all of the requirements of the bidding documents, and any award of the contract for the Project with any other entity would be in violation of the Louisiana Public Bid Law. In response to Boh Bros.’ petition, the Parish maintained that Boh Bros.’ bid was non-responsive because it failed to comply with the bidding requirements. A trial on Boh Bros.’ petition was held on September 28, 2020.

In a judgment rendered on September 30, 2020, the trial court denied Boh Bros.’ petition and upheld the Parish's rejection of Boh Bros.’ bid as non-responsive. The court further found that Command was the lowest responsive bidder for the Project. In its reasons for judgment, the trial court held that a public entity may include requirements and instructions in advertisements that exceed what is required by the Louisiana Public Bid Law, and the changes the Parish made to the bid forms were in good faith and were reasonable. The instant devolutive appeal by Boh Bros. followed.

ASSIGNMENTS OF ERROR

On appeal, Boh Bros. alleges the trial court erred in finding Boh Bros. did not comply with the bidding requirements for the Project let by the Parish, and the trial court erred in failing to rule that the Parish's modifications to the Louisiana Uniform Public Work Bid Form did not violate the statutory requirements of the Louisiana Public Bid Law.

LAW AND ANALYSIS

General Precepts of Law

Under La. C.C.P. art. 3601, "[a]n injunction shall issue in cases where irreparable injury, loss or damage may otherwise result to the applicant, or in other cases specifically provided by law." Richard v. Bourgeois , 19-494 (La. App. 5 Cir. 3/18/20), 293 So.3d 790, 793-94. An injunction is a harsh, drastic, and extraordinary remedy, and it should only issue where the mover is threatened with irreparable loss or injury without adequate remedy at law. Id ., citing Lafreniere Park Found. v. Friends of Lafreniere Park, Inc. , 97-152 (La. App. 5 Cir. 7/29/97), 698 So.2d 449, 452, writ denied , 97-2196 (La. 11/21/97), 703 So.2d 1312. "The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof is a preponderance of the evidence." Id ., citing Zeringue v. St. James Parish School Board , 13-444 (La. App. 5 Cir. 11/19/13), 130 So.3d 356, 358-59. The appellate court reviews the granting or denial of a preliminary injunction under the manifest error standard. Id . The standard of review is the same for a permanent injunction. Id .

Compliance with the Bidding Requirements²

Boh Bros. alleges that the trial court legally erred in failing to conclude that it complied with the Project's bidding requirements and the Louisiana Public Bid Law. It argues that all of the necessary information was submitted for the Parish to evaluate the responsiveness of its bid. Boh Bros. contends that it complied with the Advertisements for Bids, the bidding requirements, and the Public Bid Law because it submitted all of the work items (with correct reference numbers), unit prices, and unit price extensions³ that were fully in line with the Parish's bidding documents.

Boh Bros. further alleges the trial court legally erred in finding the Parish could alter the Louisiana Uniform Bid Form by adding headers and footers. It argues that the Parish's additions to the form are impermissible alterations in contravention to the Louisiana Public Bid Law. Boh Bros. contends that the Louisiana Legislature explicitly mandated the Uniform Bid Form to only be used "as promulgated" with the stated purpose of "provid[ing] for the more effective and efficient letting of public works contracts and [establishing] a uniform standardized bid form to facilitate this;" and, the Parish unquestionably altered the mandated "as promulgated" form with the insertion of the headers and footers. It further contends that the addition of the headers and footers did not merely exceed the requirements set forth in the Public Bid Law, but the addition also conflicts with the statutory requirement that public entities shall only use the required form. As such, Boh Bros. maintains that the Parish's required use of the bidding documents with the headers and footers is facially invalid and unenforceable, and it should be awarded the Project as the lowest responsive bidder.

In opposition, the Parish asserts the trial court was correct in its determination that Boh Bros.’ bid was properly rejected. It argues that neither the Uniform Bid Form nor the Unit Price Form was altered in any way, i.e. , no blanks were added and no additional...