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J. Caldarera & Co., Inc. v. Morial

Court of Appeals of Louisiana, Fourth Circuit

August 7, 2019

J. CALDARERA & CO., INC.
v.
ERNEST N. MORIAL EXHIBITION HALL AUTHORITY AND MELVIN RODRIGUE IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE ERNEST N. MORIAL EXHIBITION HALL AUTHORITY BOARD

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03204, DIVISION "M" Honorable Paulette R. Irons, Judge

          LLOYD N. SHIELDS JEFFREY K. PRATTINI JESSICA R. DERENBECKER SHIELDS MOTT LUND L.L.P. COUNSEL FOR PLAINTIFF/APPELLANT

          CHRISTOPHER K. LEMIEUX JOHN W. BIHM RIESS LEMIEUX, LLC COUNSEL FOR INTERVENOR/APPELLEE, LANDIS CONSTRUCTION CO., LLC

          THOMAS J. CAPELLA CHRISTIAN J. RHODES DAVID C. FLESHMAN DAVID B. PHELPS ROEDEL PARSONS KOCH BLACHE BALHOFF & McCOLLISTER COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Rosemary Ledet

          JAMES F. MCKAY III, CHIEF JUDGE

         In this public bid law case, the plaintiff, J. Caldarera & Company, Inc. (Caldarera), appeals a trial court judgment in favor of the defendants, the Ernest N. Morial Exhibition Hall Authority (the Authority) and Melvin Rodrigue in his official capacity as President of the Earnest N. Morial Exhibition Hall Authority Board, which determined that the intervenor, Landis Construction Company, LLC, was the lowest responsive bidder and rendered judgment in favor of the defendants as to all requests for relief and ordered that any temporary or preliminary injunction be deemed no longer in effect. We affirm.

         FACTS AND PROCEDURAL HISTORY

         In January of 2018, the Authority publicly advertised and sought bids for the Linear Park public works project No. CO0517 (the project). The project was part of ongoing enhancements to the convention center and sought the redevelopment of two lanes of traffic into a linear park to serve as an entrance up to the convention center. Five bids were received by the March 5, 2018 deadline. The bids were reviewed for compliance and were ranked as follows: 1) J. Caldarera & Co.; 2) Landis Construction Co., LLC; 3) Roy Anderson Corp.; 4) the McDonald Group; and 5) Boh Brothers, Inc. The lowest bid was from Caldarera.

         On March 7, 2018, the Authority notified Caldarera that it was the apparent low bidder. The bid documents also called for the lowest responsible bidder to submit the preliminary project schedule and the preliminary traffic plans within fourteen (14) days after the bid opening. An introductory meeting between representatives of the Authority and Caldarera took place on March 15, 2018.

         On March 19, 2018, Landis filed a protest challenging the responsiveness of Caldarera's bid. Landis's chief complaint was Caldarera's alleged failure to comply with the requirements in article 5.2.1 of the bid instructions that bid bonds must be "issued by a company licensed to do business in Louisiana and who is under contract with the surety company or bond insurer as a licensed agent in this state." Landis argued that because Caldarera's agent is a Connecticut resident, Caldarera's bid was nonresponsive. Also, on March 19, 2018, the Authority's facilities and construction committee voted to move forward with Caldarera subject to review and analysis of the protest and, if the protest had merit, then to move forward with the next responsive bidder. On March 20, 2018, the Authority's finance and audit committee also voted to move forward with Caldarera subject to review and analysis of Landis's protest and, if the protest was determined to have merit, then to move forward with the next lowest responsible and responsive bidder.

         The Authority provided Caldarera with a copy of the Landis protest and an opportunity to formally respond on March 21, 2018. Caldarera submitted a formal witness response to the Landis protest to the Authority on March 22, 2018.

         During the Authority's March 28, 2018 meeting, the board unanimously voted to enter executive session pursuant to La. R.S. 42:17(A)(2) to discuss and consider prospective litigation surrounding the bid protest. Prior to the meeting, the Authority's written public notice of its March 28, 2018 meeting of the board of commissioners included the following item on the agenda: "IV. Executive Session - Discussion and consideration of prospective litigation pursuant to La. R.S. 42:17(A)(2) concerning Landis Construction Co., L.L.C.'s Linear Park bid protest." After returning to open session, the board unanimously voted on a properly motioned and seconded motion to award the contract to Landis as the lowest responsive and responsible bidder. The Authority and Landis then executed the contract.

         On March 29, 2018, the Authority notified Caldarera that its bid was deemed non-responsive because Calderera failed to comply with the requirements of article 5.2.1 of the biding documents.[1] On April 2, 2018, Caldarera filed a petition for temporary restraining order, preliminary and permanent injunctive relief, mandamus, and declaratory judgment. The trial court granted a TRO on April 3, 2018. Landis filed its petition for intervention on ...


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