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Merrick, L.L.C. v. The Airport Authority For Airport Dist. No. 1 of Calcasieu Parish

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

MERRICK, L.L.C.
v.
THE AIRPORT AUTHORITY FOR AIRPORT DIST. NO. 1 OF CALCASIEU PARISH

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2018-2985 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          Murphy J. Foster, III Jacob E. Roussel Breazeale, Sachse & Wilson, .L.L.P COUNSEL FOR PLAINTIFF/APPELLANT: Merrick, L.L.C.

          H. Alan McCall Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. COUNSEL FOR INTERVENOR/APPELLEE: BDS Constructors, LLC

          Robert S. Kleinschmidt, Jr. Assistant District Attorney Calcasieu Parish District Attorney's Office COUNSEL FOR DEFENDANT/APPELLEE: The Airport Authority for Airport Dist. 1, Calcasieu Parish

          Christopher K. LeMieux Michael D. Lane John W. Bihm Riess LeMieux, L.L.C. COUNSEL FOR OTHER APPELLEE: Louisiana Associated General Contractors, Inc.

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.

          JOHN D. SAUNDERS, JUDGE.

         In this case we must decide whether the trial court's denial of all relief sought by plaintiff in these proceedings was proper.

         FACTS AND PROCEDURAL HISTORY

         In May of 2018, the Airport Authority for Airport District No. 1 of Calcasieu Parish (the "Airport Authority"), as owner, solicited bids pursuant to the Public Bid Law, La.R.S. 48:2211-2227 for the public works construction project identified as "Wildlife Mitigation - Runway 15 and 5 Drainage Improvements" (the "Project"), located at the Lake Charles Regional Airport.

         The advertisement to bidders provided for a "mandatory pre-bid conference" to be held on Tuesday, June 26, 2018, at 2:00 p.m. in the Airport Public Safety Office at the Lake Charles Regional Airport. Potential bidders were also notified of the pre-bid conference in its instructions to bidders, which stated that "[a]ttendance at this conference by the prime bidders is required."

         The mandatory meeting was held as advertised. At the conference, a sign in sheet documented each attendee present. The pre-bid conference sign-in sheet required each attendee to list the "Firm Name" of the entity on whose behalf the attendee was attending the conference. As reflected on the sign-in sheet, Justin Gaspard attended the pre-bid conference on behalf of Merrick, L.L.C. ("Merrick"). A review of the pre-bid conference sign-in sheet reveals that no attendee identified that they were attending the mandatory pre-bid conference on behalf of BDS Constructors, LLC ("BDS"). Subsequently, Addendum No. 1 was issued which incorporated the pre-bid conference sign-in sheet as a bidding document.[1]

         On or about July 10, 2018, Merrick submitted a sealed bid to the Airport Authority to serve as the general contractor on the project. In addition to Merrick, seven other contractors submitted bids to serve as the general contractor on the Project. Merrick was the apparent second low bidder. The apparent low bidder was BDS.

         On July 12, 2018, Merrick submitted to the Airport Authority a written protest of any award, intent to award, or execution of the contract for the Project with any contractor other than Merrick. On July 19, 2018, Merrick filed its Petition against the Airport Authority, seeking injunctive relief and declaratory relief. Specifically, Merrick sought (1) injunctive relief preventing the Airport Authority from awarding and/or taking any action in furtherance of any award of the contract for the Project to BDS Constructors, (2) declaratory relief rendering any contract awarded and/or entered between the Airport Authority and BDS null and void, (3) declaratory relief recognizing Merrick as the lowest responsive and responsible bidder, and (4) a mandatory injunction requiring the Airport Authority to award the contract for the Project to Merrick. Alternatively, Merrick prayed for an award of damages.

         On July 25, 2018, the district court granted a temporary order in favor of Merrick and against the Airport Authority. BDS then intervened in the proceedings on July 30, 2018. Thereafter, on August 2, 2018, a hearing was held by the district court on Merrick's request for a preliminary injunction.

         The district court denied the preliminary injunction and executed a written judgment to that effect on August 29, 2018. The judgment further reflects "that the Parties have stipulated that the Ruling of the Court will be applicable to all relief sought by Merrick in these proceedings and that Merrick's claims for permanent injunction, mandatory injunction, and declaratory relief are denied. It is from this judgment that Merrick appeals, alleging three assignments of error.

         ASSIGNMENTS OF ERROR

         1. The district court erred in ruling that BDS Constructors was entitled to the award of the contract for the Project when no attendee at the pre-bid conference represented being present on behalf of BDS Constructors, but rather, the purported representative identified himself as being present on behalf of "MK Contractors," an alleged alias of BDS Constructors.

         2. The district court erred in ruling that BDS Constructors was entitled to the award of the contract for the Project when BDS Constructors failed to bid in the name which appeared on the official records of the Louisiana State Licensing Board for Contractors.

         3. The district court erred in ruling that BDS Constructors was entitled to the award of the contract for the Project despite BDS Constructors' failure to include with its bid a form required by federal regulations and the bidding documents to be completed and submitted with the bid.

         ASSIGNMENT OF ERROR NUMBER ONE:

         Merrick's first assignment of error is that the district erred in ruling that BDS was entitled to the award of the contract for the Project when no attendee at the pre-bid conference represented being present on behalf of BDS, but rather, the purported representative identified himself as being ...


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