153 So. 3d 516
La. Ct. App.2014Background
- Public bid dispute under Louisiana Public Bid Law (La. R.S. 38:2211 et seq.) over Bayou Gardens Boulevard Extension Phase I project.
- Project bidding used Louisiana Uniform Public Works Bid Form with a requirement that the Attestation Clause (criminal record) be submitted within ten days after bid opening, affecting all bidders.
- Low bidder was LACE; second-lowest Talbot; Phylway protested the responsiveness of LACE and Talbot for failing to timely submit the Attestation Clause.
- Phylway sought mandamus and injunctive relief; Parish awarded the contract to LACE on October 10, 2012; court proceedings followed with Talbot and LACE intervening.
- Trial court found LACE non-responsive due to missing articles of organization; deemed Talbot responsive and awarded to Talbot; Phylway sought injunctive relief and mandamus.
- Majority reverses, holding Parish could not waive the Attestation Clause requirement and Talbot was non-responsive; remands for further proceedings; dissents argue for affirmance under statutory text.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Parish could enforce an Attestation Clause for every bidder. | Phylway argues the Parish’s “each bidder” requirement exceeded statutory scope. | Terrebonne asserts the bid form requirements, though above the statute, are enforceable. | Yes; the Parish violated by awarding to a non-compliant bidder. |
| Whether the bid-form requirement to submit Attestation Clause within ten days is non-waivable. | Phylway contends the statute requires only the lowest bidder to attest within ten days. | Talbot argues the relaxed application allowed by the trial court was proper. | No; the requirement applicable to all bidders could not be waived. |
| Whether Talbot was properly deemed the next lowest responsive bidder and entitled to the award. | Phylway contends Talbot failed to timely file the Attestation Clause. | Talbot complied according to statutory framework as applied to the lowest bidder at the time. | Talbot not timely compliant; court erred in denying Phylway injunctive relief; remand ordered. |
Key Cases Cited
- Hamp’s Construction, L.L.C. v. City of New Orleans, 924 So.2d 104 (La. 2006) (public bid-law waivers not allowed; advertisement/bid form requirements binding)
- Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 867 So.2d 651 (La. 2004) (policy of bidding integrity and prohibition on waivers)
- Concrete Busters of Louisiana, Inc. v. Board of Com’rs of the Port of New Orleans, 69 So.3d 484 (La.App.4th Cir. 2011) (extended reasoning to require compliance with advertised bid form where statutory requirements exist)
- Phylway Construction, LLC v. Terrebonne Parish Consolidated Gov., 153 So.3d 516 (La.App.1st Cir. 2014) (affirmative discussion of attestation timing and bid-form requirements)