COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
THE CITY OF NEW ORLEANS, ET AL. COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
THE CITY OF NEW ORLEANS ET AL. COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
THE CITY OF NEW ORLEANS AND MAYOR MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09969 C\W
2015-09971, DIVISION "L-6" Honorable Kern A. Reese,
C. Puente Peter S. Thriffiley, Jr. SIMON PERAGINE SMITH &
REDFEARN, LLP COUNSEL FOR PLAINTIFF/APPELLEE
St. Raymond Sarah C. Wellman Adam J. Swensek Rebecca H. Dietz
CITY ATTORNEY'S OFFICE COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Roland L. Belsome, Judge Rosemary Ledet,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
a public bid dispute. When the City of New Orleans (the
"City") learned that it had issued identical flawed
invitations to bid on two public road-paving projects, the
City decided to reject all of the bids and to re-advertise
the projects. One of the bidders, Command Construction
Industries, L.L.C. ("Command"), filed two lawsuits
seeking to enjoin the City from rebidding the projects and to
force the City to award the projects to Command. After the
suits were consolidated, the trial court rendered a March 15,
2017 judgment granting a preliminary injunction in favor of
Command on one project, and denying injunctive relief to
Command on the other project. The judgment also denied
Command's requests for writs of mandamus on both
projects. Both the City and Command appealed. For the reasons
that follow, we affirm in part, reverse in part, and remand.
AND PROCEDURAL BACKGROUND
to the Louisiana Public Bid Law, on July 31, 2015, the City
issued an Invitation to Bid on a public work for the paving
of streets in the Gentilly Terrace and Desire area
neighborhoods of New Orleans (the "Gentilly
Project"). The Invitation to Bid stated that each bidder
was "required" to submit a Louisiana Contractors
License Number with two specific classifications: (1)
"Public Works Construction"; and (2) "Highway,
Street & Bridge Construction."
August 14, 2015, the City issued another Invitation to Bid
for the paving of streets in the Treme and Laffite
neighborhoods of New Orleans (the "Treme Project").
Like the Gentilly Project, the Invitation to Bid on the Treme
Project required contractor licenses in "Public Works
Construction" and "Highway, Street & Bridge
September 10, 2015, the City opened the bids for the Gentilly
Project; and on September 22, 2015, the City informed Roubion
Roads & Streets, LLC ("Roubion") that it was
the lowest bidder and that the City intended to award the
contract to Roubion.
October 2, 2015, Command, which was the second-lowest bidder
on the Gentilly Project, protested the City's plan to
award the contract to Roubion. Command complained that
Roubion was a non-responsive bidder because it did not meet
the licensing requirements for the contract, in that Roubion
only had a license classification for "Highway, Streets
& Bridge Construction, " and not for "Public
Works Construction, " as required by the bid documents.
City opened the bids on the Treme Project on September 15,
2015. On October 6, 2015, the City sent a letter to Command
advising that the City intended to award the Treme Project to
Command, subject to the receipt and approval of post-bid
documentation and the execution of a formal contract with the
October 7, 2015, Roubion responded to Command's bid
protest on the Gentilly Project. Roubion advised the City
that, although the Invitation to Bid required a license for
"Public Works Construction, " there was no such
classification recognized by the Louisiana Licensing Board of
Contractors. Roubion told the City that Roubion was the
lowest responsive and responsible bidder on the Gentilly
Project because the only "true" license requirement
in the Invitation to Bid was the classification
"Highway, Street & Bridge Construction, " which
October 16, 2015, the City advised Command that the City had
determined that there was just cause for rejection of all
bids on the two projects because "no bidder ha[d] the
nonexistent contractor license classification as per the
instructions on the Invitation to Bid."
October 16, 2015, Command filed two separate "Verified
Petitions for Preliminary Injunction, Writ of Mandamus, and
Permanent Injunction, or in the Alternative, for
Damages" (collectively, the "Petitions"). In
the Petitions, Command sought to enjoin the City from
rebidding both the Gentilly and the Treme Projects, and
requested writs of mandamus to compel the City to award the
two contracts to Command. The two lawsuits were consolidated.
hearing was held on November 5, 2015. On March 17, 2017, the
trial court rendered a judgment:
(1) denying Command's Petition for Preliminary Injunction
with respect to the Gentilly Project;
(2) granting Command's Petition for Preliminary
Injunction with respect to the Treme Project;
(3) denying Command's Petition for Writ of Mandamus with
respect to the Gentilly Project; and
(4) denying Command's Petition for Writ of Mandamus with
respect to the Treme Project.
trial court found that, on the Gentilly Project, the City had
"just cause" to reject all bids "due to the
City's flawed bidding process." On the Treme
Project, however, the trial court found that Command was the
"lowest responsive and responsible bidder, " and
should be awarded the contract.
April 18, 2017, Command filed an "Ex Parte and Unopposed
Motion to Make Preliminary Injunction
Permanent." On that same date, the trial court issued
an order making permanent the March 15, 2007 judgment in
favor of Command with respect to the Treme Project only.
City appeals that portion of the March 15, 2017 judgment
granting Command's request for a preliminary injunction
on the Treme Project, and the April 18, 2017 order making
that portion of the judgment permanent. Command appeals that
portion of the March 15, 2017 judgment denying Command's
request for a preliminary injunction on the Gentilly Project,
and denying Command's requests for a writ of mandamus on
both the Gentilly and Treme Projects.
trial court has broad discretion in the granting or denial of
a preliminary injunction, and will not be disturbed on review
absent clear abuse of that discretion." Yokem v. Pat
O'Brien's Bar, Inc., 12-0217, p. 6 (La.App. 4
Cir. 8/15/12), 99 So.3d 74, 80 (quotations and internal
citations omitted). A trial court's denial of a writ of
mandamus is also reviewed under an abuse of discretion
standard. Constr. Diva, L.L.C. v. New Orleans Aviation
Bd., 16-0566, p. 13 (La.App. 4 Cir. 12/14/16), 206 So.3d
1029, 1037, writ denied, 17-0083 (La. 2/24/17), 216
So.3d 59. This court reviews legal issues using the de
novo standard of review. A.P.E., Inc. v. City of New
Orleans, 13-1091, p. 7 (La.App. 4 Cir. 1/15/14), 132
So.3d 475, 480.
Louisiana Public Bid Law
Louisiana Public Bid Law, La. R.S. 38:2211, et seq.,
governs the manner by which all contracts for public works
are to be awarded. Dynamic Constructors, L.L.C. v.
Plaquemines Parish Gov't, 15-0271, p. 5 (La.App. 4
Cir. 8/26/15), 173 So.3d 1239, 1243. The Public Bid Law was
enacted in the interest of the taxpaying citizens to protect
against favoritism in contracting by public officials
resulting in exorbitant and extortionate prices. Id.
As such, it is a ...