Phylway Constr., LLC v. Terrebonne Parish Consol. Gov't

153 So.3d 516

PHYLWAY CONSTRUCTION, LLC

v.TERREBONNE PARISH CONSOLIDATED GOVERNMENT.

No. 2013 CA 1589.

Court of Appeal of Louisiana, First Circuit.

Sept. 5, 2014.

Opinion on Denial of Rehearing Nov. 19, 2014.

John I. Hulse, IV, Metairie, LA, for Plaintiff/Appellant, Phylway Construction, LLC.

Charles F. Seemann, Jr., New Orleans, LA, for Defendant/Appellee, LA Contracting Enterprise, LLC.

Murphy J. Foster, III, Steven B. Loeb, Baton Rouge, LA, for Plaintiff–in–Intervention/Appellee, Byron E. Talbot Contractor, Inc.

Courtney E. Alcock, Houma, LA, for Defendant–Appellee, Terrebonne Parish Consolidated Government.

Before KUHN, WELCH, HIGGINBOTHAM, CRAIN, and THERIOT, JJ.

Opinion

HIGGINBOTHAM, J.

This case arises out of a public bid dispute. At issue is whether the trial court erred in failing to enforce a mandatory requisite in the advertised bid specifications that actually required more of the bidders than outlined in the pertinent version of the Louisiana Public Bid Law, La. R.S. 38:2211 et seq. After reviewing the record and applicable law, we find the trial court erred, and we reverse the judgment of the trial court and remand for further proceedings.

BACKGROUND

In mid-August 2012, the Terrebonne Parish Consolidated Government (“the Parish”) began advertising an invitation for bids pursuant to the Louisiana Public Bid Law for the construction of Phase I of the Bayou Gardens Boulevard Extension—Roadway Embankment Project (“the Project”). The Project bid form, documents, and specifications utilized the Louisiana Uniform Public Works Bid Form (“the bid form”) mandated for public works by the Louisiana Public Bid Law at La. R.S. 38:2212.

The invitation to bidders, as advertised and included in the bid form, provided:

A bid will be considered responsive if it conforms in all respects with the conditions and requirements of the Bidding Documents. In order to be considered responsive, the Louisiana Uniform Public Works Bid Form must: (a) be fully completed, signed and be responsive in all respects to the Bidding Documents; (b) be made on the Bid Forms provided and submitted intact. (Emphasis added.)

The bid form contained a “DEFINED TERMS” section, defining “Bidding Documents” as:

Documents usually including advertisement, bid notice or invitation to bidders, instructions to bidders, bid form, form of contract, contract documents and specifications, forms of bonds, conditions of contract, drawings, all addenda issued prior to receipt of bids, specifications 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. (Emphasis added.)

Additionally, the bid form contained a section entitled “PREPARATION AND SUBMISSION OF BIDS” that included a requirement for an Attestation Clause regarding past criminal convictions of bidders. The requirement specifically provided that each bidder, as opposed to the lowest bidder required by the pertinent version of La. R.S. 38:2227(A)¹ , was mandated to submit the completed criminal record Attestation Clause within ten days after the opening of the bids. The bid form stated, in pertinent part:

12.6 In accordance with La. R.S. 38:2227, each bidder on this project must submit the completed Attestation Clause (Past Criminal Convictions of Bidders) form found within these bid documents. The fully executed Attestation Clause form shall be RECEIVED by the TERREBONNE PARISH CONSOLIDATED GOVERNMENT within ten (10) days after the opening of bids. The fully executed Attestation Clause form is NOT required to be included with the bid form and is to be submitted separately within ten (10) days after the opening of bids. The submission should be identified with the name of the bidder, the project on which he is bidding, and the words ATTESTATION CLAUSE. Forms may be sent via U.S. Mail, express mail, or hand delivered[.] (Emphasis added.)

The bid form also contained an “AWARD OF CONTRACT” section that provided, in pertinent part:

16.3 In order to be responsive, prior to award and as a condition of award, each bidder must submit the additional documentation required by the Bidding Documents or requested by the OWNER. (Emphasis added.)

* * *

16.10 If the Contract is to be awarded for [the Project], it will be awarded to the lowest, qualified, responsive and responsible Bidder as determined by the evaluation of the corresponding Bid. (Emphasis added.)

* * *

16.12 In the event of failure of the lowest responsive, responsible Bidder to sign the Contract ... the Owner may award the Contract to the next lowest responsive, responsible Bidder. (Emphasis added.)

After advertising the Project, the Parish received nine bids by the posted deadline of September 20, 2012. On that date, the Parish opened the bids and found that LA Contracting Enterprise, LLC (“LACE”) was the apparent low bidder. The second lowest bidder was Byron E. Talbot Contractor, Inc. (“Talbot”), and the third lowest bidder was Phylway Construction, LLC (“Phylway”). Phylway issued a formal written letter of protest with the Parish on October 2, 2012, more than ten days after the opening of the bids, challenging the responsiveness of the LACE and Talbot bids and requesting that the Parish award the Project to Phylway, who claimed to be the lowest responsive, responsible bidder. Phylway contended that the LACE and Talbot bids failed to comply with several requirements listed in the bid specifications and/or Bidding Documents, specifically noting their failure to submit the mandatory criminal record Attestation Clause in a timely manner.² Talbot submitted its criminal record Attestation Clause on October 3, 2012, after the ten-day time period since the bid opening. Despite Phylway's protest, the Parish awarded the Project to LACE on October 10, 2012, noting that LACE's submission of its criminal record Attestation Clause with its bid documents before the opening of the bids was not a violation of the requirements.

On October 17, 2012, Phylway filed a petition seeking mandamus to compel the Parish to reject the alleged non-responsive bids of LACE and Talbot and award the Project to Phylway as the lowest responsive and responsible bidder. Phylway also requested a temporary restraining order (TRO) and an injunction against the Parish to restrain and prohibit the execution of any contract with LACE or Talbot for the Project. The trial court issued a TRO on October 18, 2012, and scheduled a hearing on the requested injunctive relief for October 26, 2012. The Parish opposed the petition and before the hearing, Talbot and LACE intervened, each claiming to be the apparent low bidder on the Project.³

After the hearing, the trial court found that LACE's bid was non-responsive, because it lacked the required articles of organization requested in the Parish's bid specifications. In its ruling as to LACE, the trial court did not discuss the criminal record Attestation Clause requirement because of the other problem with LACE's bid. The trial court acknowledged that Phylway's bid was responsive in all respects,⁴ but found that Talbot should be awarded the Project as the lowest responsive bidder ahead of Phylway. The trial court noted a “common sense interpretation” of the criminal record Attestation Clause requirement was that Talbot had ten days from the time it was determined to be the low bidder before it had to file the required criminal record attestation. Thus, the trial court ruled that even though Talbot had not filed its criminal record attestation within ten days of the bid opening, it had filed the Attestation Clause before the hearing where it was determined to be the low bidder, so the trial court concluded that Talbot's bid was responsive. The trial court signed a judgment on January 14, 2013, denying Phylway's request for injunctive relief and issuing a writ of mandamus ordering the Parish to award the Project to Talbot.

Phylway appealed, assigning three errors regarding the trial court's ruling as it applied to Talbot: (1) the trial court erred in failing to enforce the mandatory requirements of the advertised bid specifications, which required each bidder to submit to the Parish, within ten days of the bid opening, a fully executed criminal record Attestation Clause; (2) the trial court erred in failing to adhere to mandatory requirements of the Public Bid Law and rulings of the Louisiana Supreme Court, which provide that a public entity has no discretion to waive requirements of its own advertised and published bid specifications; and (3) the trial court erred in failing to find that Talbot's bid was non-responsive and failing to order the Parish to award the contract for the Project to Phylway. We note that Phylway has not raised any error regarding the trial court's ruling as to LACE and LACE has not filed its own appeal nor answered Phylway's appeal. Thus, we decline any consideration of the trial court's ruling that LACE's bid was non-responsive.⁵

LAW AND ANALYSIS

This litigation is governed by Louisiana's Public Bid Law, La. R.S. 38:2211 et seq., which is a prohibitory law founded on public policy. Hamp's Construction, L.L.C. v. City of New Orleans, 2005–0489 (La.2/22/06), 924 So.2d 104, 107 ; State Machinery & Equipment Sales, Inc. v. Iberville Parish Council, 2005–2240 (La.App. 1st Cir.12/28/06), 952 So.2d 77, 82–83. The Public Bid Law was enacted in the interest of the taxpaying citizens of this State for the purpose of protecting them against contracts awarded through favoritism and involving exorbitant and extortionate prices. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004–0211 (La.3/18/04), 867 So.2d 651, 656.

A political entity such as the Parish has no authority to take any action that is inconsistent with the Public Bid Law. Id.Louisiana Revised Statutes 38:2212(A)(1)(b)(i) clearly and unambiguously provides that the public entity may not waive (1) any requirements of the Public Bid Law, (2) any requirements...