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Command Construction Industries, L.L.C. v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

June 20, 2018

COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
v.
THE CITY OF NEW ORLEANS, ET AL. COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
v.
THE CITY OF NEW ORLEANS ET AL. COMMAND CONSTRUCTION INDUSTRIES, L.L.C.
v.
THE CITY OF NEW ORLEANS AND MAYOR MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-09969 C\W 2015-09971, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Denise C. Puente Peter S. Thriffiley, Jr. SIMON PERAGINE SMITH & REDFEARN, LLP COUNSEL FOR PLAINTIFF/APPELLEE

          Corwin St. Raymond Sarah C. Wellman Adam J. Swensek Rebecca H. Dietz CITY ATTORNEY'S OFFICE COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS, JUDGE

         This is 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         The Projects

         Pursuant 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."

         On 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 Construction."

         On 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.

         On 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.

         The 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 City.

         On 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 Roubion held.

         On 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."

         On 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.

         A 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.

         The 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.

         On April 18, 2017, Command filed an "Ex Parte and Unopposed Motion to Make Preliminary Injunction Permanent."[1] 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.

         The 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.

         DISCUSSION

         Standard of Review

         "A 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.

         The Louisiana Public Bid Law

         The 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 ...


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