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MST Enterprises Co., L.L.C. v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

July 29, 2015

MST ENTERPRISES COMPANY, L.L.C.
v.
THE CITY OF NEW ORLEANS AND MR. MITCHELL J. LANDRIEU IN HIS OFFICIAL CAPACITY AS THE MAYOR OF THE CITY OF NEW ORLEANS

Page 196

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2014-09836, DIVISION " J" . HONORABLE PAULA A. BROWN, JUDGE.

LLOYD N. SHIELDS, JEFFREY K. PRATTINI, SHIELDS MOTT, LLP, New Orleans, Louisiana, Counsel for Plaintiff/Appellee.

MATTHEW D. FRASER, ASSISTANT CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, SHAY ZELLER, ASSISTANT CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, DEREK MICHAEL MERCADAL, ASSISTANT CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, ADAM J. SWENSEK, ASSISTANT CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, CHERRELL R. SIMMS, SR. CHIEF DEPUTY CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, SHARONDA R. WILLIAMS, CITY ATTORNEY FOR THE CITY OF NEW ORLEANS, New Orleans, Louisiana, Counsel for Defendants/Appellants.

(Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano). DYSART, J., CONCURS.

OPINION

Page 197

JAMES F. MCKAY III, Judge.

[2015-0112 La.App. 4 Cir. 1] In this public bid law case, the defendants, the City of New Orleans and Mitchell J. Landrieu in his official capacity as the Mayor of the City of New Orleans, appeal the trial court's granting of a preliminary injunction and mandamus in favor of the plaintiff, MST Enterprises, L.L.C. We reverse.

FACTS AND PROCEDURAL HISTORY

On June 6, 2014, the City of New Orleans issued an invitation to bid for a large scale tree planting and beautification project along Esplanade Avenue. The bid specifications stated that " [t]ree pruning shall be completed by a Louisiana Licensed and ISA Certified Arborist." [1] On July 24, 2014, the City received three bids, including one from MST Enterprises, L.L.C.

On July 28, 2014, Raymond Moran, assistant purchasing agent for the City, emailed MST to request MST's post-bid documents. MST's response to this request did not include an ISA certification. On July 31, 2014, Mr. Moran again emailed MST and specifically asked MST to provide documentation regarding the ISA certification requirement. MST responded to Mr. Moran's email that same [2015-0112 La.App. 4 Cir. 2] day, but did not provide the requested documentation. On August 14, 2014, Mr. Moran emailed MST for a third time and specifically requested that MST provide evidence that it could meet the ISA requirements set forth in the bid specifications. MST responded the following day, but again failed to attach the ISA certification. Mr. Moran emailed MST for a fourth time on August 21, 2014, and asked MST to explain how it planned to satisfy the ISA certification requirement. Mr. Moran proposed that MST provide the name of the ISA certified individual that MST would use for the pruning. On August 25, 2014, MST sent a letter to the City, stating: " we will obtain the ISA Certification Prior to the Start of Work. Application is in Process and should be obtained in 30 days or less." On September 4, 2014, the City sent a letter to MST, rejecting its bid as non-responsive. The City believed that MST's inability to provide clear and convincing evidence of the firm's present ability to fulfill [the ISA certification] requirement caused the bid to be non-responsive.

MST filed a petition for temporary restraining order, preliminary and permanent injunctive relief, writ of mandamus, and declaratory judgment on October 9, 2014. On October 21, 2014, a hearing took place before the Honorable Paula Brown. Following the hearing, the trial court granted MST's motion for preliminary injunction pending the City giving MST an administrative " responsibility" hearing. The trial court found that the ISA certification was not a required bid or post-bid document, so MST's failure to submit the ISA certification would not render the bid nonresponsive. However, the trial court also found that [2015-0112 La.App. 4 Cir. 3] MST's failure to provide the City with the requested information was non-responsible and MST was entitled to an administrative hearing pursuant to La. R.S. 38:2212(X).[2]

On October 27, 2014, an informal administrative hearing was held before Hearing Officer ...


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