LEBLANC MARINE, L.L.C.
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
J. Foster, III Counsel for Intervenor/Appellant, Jacob E.
Roussel Southern Delta Construction Baton Rouge, LA
M. Rose Baton Rouge, LA Counsel for Defendant, State of
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.
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
AND PROCEDURAL HISTORY
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)." 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
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.
(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
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.
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.
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. 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,  or alternatively,
a declaration that the contract between the State and SDC was
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
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
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
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.
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.
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.
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, ...