Command Constr. v. Jefferson

1

COMMAND CONSTRUCTION, LLC v. PARISH OF JEFFERSON

No. 23-C-356

Court of Appeals of Louisiana, Fifth Circuit

May 31, 2024

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 831-689, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

COUNSEL FOR PLAINTIFF/RESPONDENT, COMMAND CONSTRUCTION, LLC Luke P. LaRocca Denise C. Puente Douglas F. Wynne, Jr. Peter S. Thriffiley, Jr. Kelly A. Gismondi

COUNSEL FOR DEFENDANT/RELATOR, PARISH OF JEFFERSON Michael R.C. Riess Johanna E. Lambert Michael A. Levatino, Jr.

AMICUS CURIAE, LOUISIANA ASSOCIATED GENERAL CONTRACTORS Harry J Philips, Jr. John T. Andrishok

Panel composed of Judges Stephen J. Windhorst, Scott U.Schlegel and Jason Verdigets, Pro Tempore

AFFIRMED

SJW

JMV

CONCURS WITH REASONS

SUS

STEPHEN J. WINDHORST JUDGE

Relator/defendant, Jefferson Parish ("the Parish"), seeks review of the trial court's June 14, 2023 judgment (1) granting respondent/plaintiff Command Construction, L.L.C's ("Command") motion for partial summary judgment; and (2) denying relator's motion for summary judgment. For the reasons that follow, we deny relator's writ application.

After a thorough review of the writ application, opposition, and attachments thereto, and careful consideration of the statutory law and jurisprudence, upon de novo review, we cannot find that the trial court erred in denying the Parish's motion for summary judgment and granting Command's motion for partial summary judgment for the reasons which follow.

Because this case concerns the legal effect of this court's ruling in Boh Bros. Construction Co., L.L.C. v. Parish of Jefferson, 20-472 (La.App. 5 Cir. 06/02/21), 325 So.3d 500, writ denied, 21-950 (La. 10/19/21), 326 So.3d 261, and writ denied, 21-951 (La. 10/19/21), 326 So.3d 259, the following factual background is necessary and relevant to the legal issues in this writ application.

PROCEDURAL HISTORY and FACTS

On June 10, 2020,^[1] the Parish issued an Advertisement for Bids for "West Esplanade Avenue U-Turn (Vicinity of Harvard Avenue)," Project No. 2017-031-RPB, Proposal No. 50-00130667 ("the project"). Command, Boh Bros., and other contractors submitted sealed bids for the project. The bids were opened and read aloud on July 28, 2020. Boh Bros. had the lowest monetary bid of $3,111,405.50 and Command had the second lowest bid of $3,288,248.00.^[2] Despite being the lowest monetary bidder, the Parish unilaterally^[3] rejected Boh Bros.' bid as non-responsive because it was not on the revised Public Bid Form and Unit Price Form.^[4]On August 11, 2020, Jefferson Parish sent a bid tabulation to all of the bidders, notifying Boh Bros. that its bid was rejected and Command was announced as the lowest bidder and was awarded the project.

On August 13, 2020, Boh Bros. submitted a timely written protest to the Parish. On August 20, 2020, the Parish rejected the protest finding that Boh Bros. did not submit its bid on the revised Public Bid Form and Unit Price Form as required by Addendum No. 2, which required headers and footers on the bid form. No challenge was made to the responsiveness of Command's bid by either the Parish or Boh Bros.

On September 10, 2020, Boh Bros. filed a "Verified Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction and Mandamus, or in the alternative, for Damages," alleging it was the lowest responsive and responsible bidder for the project because its bid conformed with the bidding requirements under the Louisiana Public Bid Law, it was the lowest monetary bidder, and the Parish is prohibited from modifying the Louisiana Public Bid Form. Boh Bros. sought to enjoin the Parish from awarding the project to any other bidder and to compel the Parish to award the project to Boh Bros. The trial court granted Boh Bros. request for a temporary restraining order. Command filed a petition for intervention on September 21, 2020, alleging that it was the lowest responsive bidder for the project because it complied with the bid form and an award to any other contractor would be in violation of the Louisiana Public Bid Law. The Parish filed a response maintaining that Boh Bros.' bid was non-responsive because it did not comply with the bidding requirements.

On September 30, 2020, after a trial on the merits, the trial court upheld the Parish's rejection of Boh Bros.' bid as non-responsive and denied the relief requested by Boh Bros. in its petition. The trial court further found Command to be the lowest responsive bidder for the project.

On October 30, 2020, Boh Bros. filed a motion for devolutive appeal,^[5] which was granted. On appeal, Boh Bros. alleged that the trial court erred in finding that it did not comply with the bidding requirements for the project. Boh Bros. also alleged that 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. Accordingly, Boh Bros. argued that as the lowest responsive bidder, it was entitled to mandamus and injunctive relief.

The Parish argued in opposition that the trial court did not err in upholding the Parish's rejection of Boh Bros.' bid and that the addition of headers and footers on the bid form did not violate the Public Bid Law. The Parish argued that the issue before this court was res nova, i.e., whether the requirement of headers and footers on the Uniform Bid Form and Unit Price Form was a violation of the Louisiana Public Bid Law. In its statement of facts and conclusion, the Parish mentioned that it awarded the contract to Command. However, the fact that the contract was already awarded to Command was not an assignment of error nor briefed as an argument before this court on appeal.

Command also filed an opposition holding that the trial court did not err in its judgment and the trial court properly held that Command was entitled to the award of the contract for the project.

On November 17, 2020, while Boh Bros.' appeal was pending, the Parish and Command entered into a contract for the project according to the mandates of La. R.S. 38:2215.^[6] As required by the contract, Command provided a payment and performance bond in the amount of $3,288,288.00. The Parish issued a notice to Command to proceed and Command commenced with the project.^[7] The Parish subsequently directed Command to perform additional work on the project, which necessitated the issuance of Change Order No. 1.

On June 2, 2021, in reversing the trial court's judgment denying Boh Bros.' petition for injunctive relief and mandamus and upholding the Parish's rejection of Boh Bros.' bid, this court stated:

In the case at bar, the Parish required the header and footer on each page of the Uniform Bid Form and the Uniform Price Form, pursuant to Addendum No. 2. A public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or are able to be waived. Hamp's Const. L.L.C. v. City of New Orleans, 05-489 (La. 2/22/06), 924 So.2d 104, 110, rehearing denied, (La. 4/17/06). "[W]hen a public entity elects to place certain requirements in its advertisement 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." Id., quoting Broadmoor, L.L.C., 867 So.2d at 657. Therefore, the requirement of the placement of the header and footer on each page of the bidding documents by the Parish cannot be considered as an insignificant or non-substantive labeling requirement. Consequently, once the Parish required the placement of the header and footer on each page of the bid form, it could not waive that requirement. The Parish was required to reject Boh Bros.' bid as non-responsive because the bid form did not comply with the requirements set forth in the bidding documents. Thus, the issue before this Court is whether the Parish's requirement that the header and footer be placed on each page of the bidding documents was in violation of the Louisiana Public Bid Law. [Emphasis added.]

Boh Bros., 325 So.3d at 506-507.

After reviewing the facts of this case and Durr Heavy Construction, LLC v. City of New Orleans, 16-609 (La. 04/15/16), 189 So.3d 384, this court found that "the Parish violated the Louisiana Public Bid Law when it imposed the requirement in Addendum No. 2 that the Uniform Bid Form and the Uniform Price Form contain a header and footer on each page."^[8] Id. at 508. Accordingly, this court reversed the trial court's judgment upholding the Parish's rejection of Boh Bros.' bid for the project as non-responsive and denying Boh Bros.' petition for preliminary injunction, permanent injunction, and mandamus. Id. This court further enjoined the Parish from awarding Command the contract for the project and ordered that Boh Bros. be declared the lowest responsive and responsible bidder for the contract for the project. Id.

The Parish and Command each applied for writs with the Louisiana Supreme Court. On October 19, 2021, the Louisiana Supreme Court denied writs. Despite this court's ruling and denial of writs by the Louisiana Supreme Court, the Parish never ordered Command to stop working on the project and Command asserted that it was not in a position to refuse to continue work on the project because failing to do so would have placed its payment and performance bond at risk.

The Parish's agent and representative, the project engineer, determined that the project was substantially completed in December 2021. The Parish took possession of the project on December 30, 2021 and has been using it since that time.

On April 4, 2022, the Parish settled with Boh...