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Leblanc Marine, L.L.C. v. State

Court of Appeals of Louisiana, First Circuit

October 17, 2018

LEBLANC MARINE, L.L.C.
v.
STATE OF LOUISIANA, DIVISION OF ADMISINTRATION, OFFICE OF FACILITY PLANNING AND CONTROL

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number C662410 Honorable Todd Hernandez, Judge Presiding

          Murphy J. Foster, III Counsel for Intervenor/Appellant, Jacob E. Roussel Southern Delta Construction Baton Rouge, LA

          Eboni M. Rose Baton Rouge, LA Counsel for Defendant, State of Louisiana

          Craig N. Magnum Cassandra R. Hewlings New Orleans, LA Counsel for Plaintiff/Appellee, LeBlanc Marine, L.L.C.

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by the intervenor, Southern Delta Construction, L.L.C., from the trial court's grant of declaratory judgment in favor of LeBlanc Marine, L.L.C. For the reasons that follow, the judgment of the trial court is affirmed.

         FACTS AND PROCEDURAL HISTORY

         In May of 2017, the State of Louisiana, through the Division of Administration, Office of Facility Planning and Control ("the State"), issued an "Advertisement for Bids" for Phase III Levee Repairs at Rockefeller Wildlife Refuge, located in Grand Chenier, Louisiana, identified as Project Number 01-107- 05B-13, Part ZM ("the Project"). The advertisement provided that bids would be received until September 19, 2017, and, with reference to written evidence of the authority of the person signing the bid, that the bidder was "required to comply with provisions and requirements of LSA-R.S. 38;22I2(B)(5)."[1] The Project's "Instructions to Bidders" further provided in Section 5.1.9 that:

The bid shall include the legal name of the Bidder and shall be signed by the person or persons legally authorized to bind the Bidder to a Contract. Written evidence of the authority of the person signing the bid for the public work shall be submitted at the time of bidding. The authority of the signature of the person submitting the bid shall be deemed sufficient and acceptable under any of the following conditions:

         (a) A corporate resolution or a copy of the detailed record from the Secretary of State's business filings page submitted with the bid package as required by R.S. 38:2212(B)(5).

(b) When a corporation, partnership, or other legal entity has filed in the records of the Secretary of State, an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts. A bid package submitted by such a legal entity shall include a current Power of Attorney certifying agent's authority to bind Bidder, as required by R.S. 38;22I2(B)(5). The name and license number on the envelope shall be the same as the entity identified on the Bid Form.

         According to the bid tabulation sheet, LeBlanc Marine, L.L.C. ("LeBlanc Marine") submitted the lowest bid and Southern Delta Construction, L.L.C. ("SDC") submitted the second lowest bid for the Project. By letter dated September 20, 2017, however, the State informed LeBlanc Marine through its President, Ben LeBlanc, that its bid failed to comply with Section 5.1.9 of the Instructions to Bidders, because it failed to submit written evidence of the authority of the person signing the bid for the public work at the time of bidding, and that accordingly, its bid was rejected. The State thereafter determined that the second lowest bidder, SDC, was the successful bidder, and by letter dated September 25, 2017, awarded the contract for the Project to SDC.

         On October 2, 2017, LeBlanc Marine, through its counsel of record, sent a letter to the State, challenging the rejection of its bid and requesting a public records inspection of the bids submitted for the Project within seventy-two hours in accordance with LSA-R.S. 44:1, et seq. On October 12, 2017, the State responded by providing LeBlanc Marine with a copy of SDC's entire bid for the Project.

         The next day, on October 13, 2017, LeBlanc Marine filed a petition for injunctive and declaratory relief, seeking to enjoin the State from awarding the contract for the Project to SDC or, alternatively, a declaration that any contract entered into by the State and SDC be declared null and void. In its petition, LeBlanc Marine contended that SDC's bid was non-compliant and violated Section 5.1.9 of the Instructions to Bidders where it failed to include written evidence to prove that the person who signed SDC's bid had the authority to sign and submit the bid on SDC's behalf in the form of either: (a) a corporate resolution; (b) a copy of the detailed record from the Secretary of State's business filings; or (c) an affidavit, resolution or other acknowledged or authentic document indicating the names of all parties authorized to submit bids for public contracts with a current Power of Attorney.[2] LeBlanc Marine contended that instead, SDC included a "Certification of Authority," which it argued failed to meet the requirements of Section 5.1.9. LeBlanc Marine thus sought the issuance of a temporary restraining order, preliminary injunction, and final injunction enjoining the State from awarding the contract for the Project to SDC, [3] or alternatively, a declaration that the contract between the State and SDC was absolutely null.[4]

         On October 18, 2017, SDC filed a petition for intervention, maintaining that its bid was submitted in accordance with the Public Bid Law and the bidding documents, and seeking dismissal of the proceedings initiated by LeBlanc Marine.[5]

         On November 21, 2017, the matter proceeded before the trial court on LeBlanc Marine's declaratory judgment action. After considering joint stipulations of fact with accompanying exhibits and argument of the parties, the trial court issued a written ruling on December 1, 2017, granting the petition for declaratory relief and setting forth its reasons.

         In conformity with its ruling, the trial court signed a judgment on January 4, 2018, granting LeBlanc Marine's petition for declaratory relief and determining that, pursuant to LSA-R.S. 38:2220.4, the State had violated the Louisiana Public Bid Law, LSA-R.S. 38:2211, et seq., in awarding the Project to SDC, where SDC's bid was not the lowest responsive bid submitted in connection with the Project. The judgment further declared that any contract executed between the State and SDC in connection with the Project was an absolute nullity, in accordance with LSA-R.S. 38:2220.1, et seq. and LSA-C.C. art. 2029, et seq.[6]

         SDC now appeals from the judgment of the trial court, contending that the trial court erred in determining that: (1) SDC's bid failed to comply with the enumerated types of written evidence of authority set forth in Section 5.1.9 of the Instruction to Bidders; (2) the enumerated types of documentation set forth in Section 5.1.9 of the Instruction to Bidders were the exclusive forms of written evidence of authority that could be accepted by the State; and (3) the Instructions to Bidders can permissibly restrict the types of written evidence of authority which would otherwise be acceptable under the Public Bid Law.

         DISCUSSION

         Louisiana's Public Bid Law, codified in LSA-R.S. 38:2211, et seq., 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. Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit work to be done on its behalf or on behalf of its political subdivisions. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211, 2004-0212 (La. 3/18/04), 867 So.2d 651, 656. 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. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 107.

         A political entity has no authority to take any action that is inconsistent with the Public Bid Law. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 867 So.2d at 656. Louisiana Revised Statute 38;22l2(B)(1) clearly and unambiguously provides that "[t]he provisions and requirements of this Section and those stated in the bidding documents shall not be waived by any entity." "Bidding documents" are defined as the bid notice, plans and specifications, bid form, bidding instructions, 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. LSA-R.S. 38:2211(A)(2). Consequently, once the public entity establishes a requirement in its bidding documents, that requirement must be uniformly followed by all bidders. Hamp's Construction, L.L.C. v. City of New Orleans, 924 So.2d at 111.

         As set forth above, LSA-R.S. 38;22I2(B)(5) of the Public Bid Law provides that written authority of the person signing the bid is sufficient and acceptable if: (a) the signature is that of any corporate officer listed on the most current annual report on file with the secretary of state, or that of any member of a partnership, limited liability company, limited liability partnership, or other legal entity listed on file with the secretary of state; (b) the signature is that of an authorized representative as documented by the legal entity certifying the authority of the person; or (c) the legal entity has filed an affidavit, ...


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