Byron E. Talbot Contractor, Inc. v. Lafourche Parish Sch. Bd.

332 So.3d 699

BYRON E. TALBOT CONTRACTOR, INC.

v.LAFOURCHE PARISH SCHOOL BOARD

2021 CA 0181

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: NOVEMBER 01, 2021

Murphy J. Foster, III, Jacob E. Roussel, Baton Rouge, Louisiana, Counsel for Appellant Plaintiff—Byron E. Talbot Contractor, Inc. ("Talbot")

Catherine Masterson, Patrick M. Amedee, Thibodaux, Louisiana, Counsel for Appellee Defendant—Lafourche Parish School Board ("LPSB")

Charlie Seemann, Jr., Brian S. Schaps, New Orleans, Louisiana, Counsel for Appellee Intervenor—LA Contracting Enterprise, L.L.C. ("LA Contracting")

Before: McClendon, Welch, and Theriot, JJ.

WELCH, J.

In this matter arising under alleged violations of the Louisiana Public Bid Law, La. R.S. 38:2211 et seq. , the unsuccessful bidder for a public works project—Byron E. Talbot Contractor, Inc. ("Talbot")—brought an action seeking to enjoin the Lafourche Parish School Board ("LPSB") from awarding the contract to the lowest successful bidder or, alternatively, a declaration that any contract entered into by the LPSB and the lowest successful bidder was null and void. The lowest successful bidder—LA Contracting Enterprise, LLC ("LA Contracting")—intervened. The trial court ultimately denied Talbot's request for preliminary injunction. In this appeal, we are called upon to decide whether a public entity's bid advertisement may impose more restrictive requirements than the public entity's bidding instructions. We conclude that a public entity's bidding documents—including its bid advertisement and its bidding instructions—may not impose more restrictive requirements than those set forth in the Public Bid Law. See La. R.S. 38:2212(B)(2). We affirm.

FACTS AND PROCEDURAL HISTORY

The LPSB solicited bids for a general contractor for a public works construction project named "New Thibodaux Middle School, Phase 1 Site Improvement" (the "project"). The LPSB's bid advertisement required that five items be identified on the bid envelope: (1) Job name and owner; (2) Architect; (3) Date; (4) Contractor's name, address, and license number; and (5) Architect's Project Number #1914.01." However, the LPSB's bidding instructions required that only four items be identified on the bid envelope: (1) Owner; (2) Project; (3) Contractor's license number; and (4) Architect's Project Number #1914.01.

Four parties submitted electronic bids. None of the four bidders submitted bids in a sealed envelope, but rather each utilized the electronic bid procedure by submitting their bids via the statutorily mandated "Louisiana Uniform Public Work Bid Form," which included a section on the electronic bid form where bidders would insert all of the information that would otherwise be required on the exterior of the sealed envelope. Talbot and one other bidder identified the five items listed in the bid advertisement on their electronic bid forms, while LA Contracting identified only the four items listed in the bidding instructions on its electronic bid form.

LPSB awarded the project to the apparent lowest bidder, LA Contracting. Thereafter, Talbot—the apparent second lowest bidder—filed suit against the LPSB, seeking injunctive and declaratory relief. Talbot alleged that LA Contracting identified only the four items listed in the bidding instructions on its electronic bid form as opposed to the five items listed in the bid advertisement. Talbot argued that LA Contracting's bid was non-conforming and non-responsive to the bid advertisement because its electronic bid form failed to identify the architect, and that an award of the contract to LA Contracting would be in violation of the Public Bid Law.

The LPSB answered, contending that LA Contracting's bid was compliant with and responsive to the bidding instructions. LA Contracting intervened in the suit. Following a hearing, the trial court denied Talbot's request for preliminary injunction and gave oral reasons for ruling. The trial court signed a judgment in accordance with its ruling on September 29, 2020. Pursuant to a joint stipulation, the trial court's ruling was made permanent and applicable to Talbot's pending actions for permanent injunction, declaratory judgment, and mandatory injunction. Talbot now appeals the denial of its request for preliminary injunction.

STANDARD OF REVIEW - PRELIMINARY INJUNCTION

A preliminary injunction is an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. Farmer's Seafood Co. v. State ex rel. Dep't of Pub. Safety, 2010-1746 (La. App. 1st Cir. 2/14/11), 56 So.3d 1263, 1266. A preliminary injunction is designed to preserve the status quo between the parties pending a trial on the merits. Stevens Constr. & Design, L.L.C. v. St. Tammany Fire Prot. Dist. No.1 , 2018-1759, 2019-0431, 2019-0642 (La. App. 1st Cir. 1/16/20), 295 So.3d 954, 957-58 (en banc ), writ denied, 2020-00977 (La. 11/4/20), 303 So.3d 650. A plaintiff seeking issuance of a preliminary injunction bears the burden of establishing, by a preponderance of the evidence, a prima facie showing that he will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. La. C.C.P. art. 3601 ; Stevens v. St. Tammany Par. Gov't, 2016-0197 (La. App. 1st Cir. 1/18/17), 212 So.3d 562, 565.

Louisiana Code of Civil Procedure article 3612(B) provides that an appeal may be taken as a matter of right from an order or judgment granting or denying a preliminary injunction. Stevens, 212 So.3d at 565. Whether to grant or deny a preliminary injunction rests within the sound discretion of the trial court. While the trial court's ruling will not be disturbed on appeal absent an abuse of that discretion, this standard is based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding necessary to the proper exercise of its discretion. Terrebonne Par. Consol. Gov't v. Carter, 2019-1390 (La. App. 1st Cir. 9/18/20), 313 So.3d 1016, 1020. Accordingly, we review the trial court's denial of Talbot's request for preliminary injunction under the manifest error standard. See Zachary Mitigation Area, LLC v. Tangipahoa Par. Council, 2016-1675 (La. App. 1st Cir. 9/21/17), 231 So.3d 687, 691 ; Saer v. New Orleans Reg'l Physician Hosp. Org., 2014-856 (La. App. 5th Cir. 3/25/15), 169 So.3d 617, 620.

LOUISIANA PUBLIC BID LAW

Louisiana's Public Bid Law, set forth in La. R.S. 38:2211 et seq. , 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. Barriere Constr. Co., L.L.C. v. Par. of Tangipahoa, 2018-0279 (La. App. 1st Cir. 9/24/18), 259 So.3d 458, 461. 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 Const. Co. LLC v. E. Feliciana Par. Police Jury, 2012-1307 (La. App. 1st Cir. 7/11/13), 122 So.3d 35, 39. The provisions and requirements of the Public Bid Law have been amended several times since its inception. Each revision has evidenced a clear legislative intent that the substantive requirements of the bidding documents shall not be considered as informalities and shall not be waived by any public entity. La. R.S. 38:2212(A)(1) and (B)(1). See also Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 2004-0211, 2004-0212 (La. 3/18/04), 867 So.2d 651, 657 ; Barriere Constr. Co., L.L.C., 259 So.3d at 461. "[W]hen a public entity elects to place certain requirements in its advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date." Broadmoor, L.L.C., 867 So.2d at 657.

A public contract is any contract awarded by any public entity for the making of any public works or for the purchase of any materials or supplies. La. R.S. 38:2211(A)(11). The Public Bid Law defines the "bidding documents" as the bid notice, plans and specifications, bid form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract. La. R.S. 38:2211(A)(2). The Public Bid Law mandates that a public entity's bidding documents may only require bidders to submit certain information in response to a bid. As set forth in La. R.S. 38:2212(B)(2), in pertinent part:

The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Signature of Bidder, Name, Title, and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution or written evidence of the authority of the person signing the bid, and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth including a description for each unit; however, unit prices shall not be utilized for the construction of building projects, unless the unit prices and their extensions are incorporated into the base bid or alternates.

The statute further requires that "[a]ny public entity advertising for public work shall use only the Louisiana Uniform Bid Form as promulgated in accordance with the Administrative Procedure Act by the division of administration, office of facility planning and control." La. R.S. 38:2212(B)(2).¹

When a public entity elects to place certain requirements that differ from the statutory requirements in its bidding documents, then that public entity is bound by those advertised requirements and bid form specifications in addition to the statutory requirements, and may not choose to waive them at a later date. See Phylway...