BEVERLY CONST. CO. v. Parish of JeffersonBEVERLY CONST. CO. v. Parish of Jefferson
David S. Fos, Jeremy D. Dwyer, Assistant Parish Attorneys, Jefferson, Louisiana, for Defendаnt/Appellee.
Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
FREDERICKA HOMBERG WICKER, Judge.
OPINION
Plaintiff Beverly Construction Company, L.L.C. (Beverly) appeals a judgment denying a permanent injunction аnd dismissing its petition for damages. Beverly was the unsuccessful lowest bidder for a Parish of Jefferson (the Parish) public work‘s contract street repair contract for District 2.1 On March 28, 2007, by Resolution No. 107496, the Parish accepted Kass Brothers, Inc.‘s (Kass‘) bid as the lowest responsible bid and authorized the execution of a contract with Kass. Beverly filed a letter of formal protest regarding the Parish‘s choice to accept Kass’ bid. The protest was denied on the basis that Beverly did not сomply with a requirement stated in the Parish‘s advertisement for bids. Beverly filed a petition against the Parish seeking an injunction, nullification of the contract, or damages, claiming it was the lowest responsible bidder.2 The primary question presented on appeal is whether the Parish could waive a requirement stated in its advertisement for bids. For the reasons that follow, we affirm.3
Beverly argues that it is not seeking a waiver of any of the bid requirements, it is simply asking that the bid instructions be interpreted reasonably and in good faith in accordance with the public bid law. Beverly states that it does not seek a waiver of the requirement that a corporate resolutiоn be included in the bid package, instead it is objecting to the Parish‘s interpretation of its required bid application.
Beverly argues that the Parish‘s rejection оf the bid was an overly restrictive and nonsensical interpretation of the public bid law. Beverly concedes that the bid requirements stated that the bid packаge be returned in its entirety in order for the bid to be valid. But Beverly argues that these directions do not specify that the bidder is to return each and every original pаge of the bid invitation. Beverly contends that it merely substituted its own standard corporate resolution form in its bid submission and its bid should not have been rejected for the failurе to return the original blank, and unused sample corporate resolution form.
Beverly also asserts that the Parish acted arbitrarily in interpreting its bid instruction so rigidly. In essеnce, Beverly contends that the Parish had the discretion to interpret the bid advertisement requirement that the bid package be returned in its entirety. In support of its argument, Beverly alleges that the Parish interpreted another advertised bid requirement regarding color maps more favorably to the bidders. Thus, according tо Beverly, the Parish is acting arbitrarily in interpreting its advertised bid requirements.
Beverly refers to Addendum # 1 to the bid. The Addendum provides in pertinent part:
A ”Color” copy of the street mаp for Council District # 2 may be downloaded from The Jefferson Parish website at WWW.JEFFPARISH.NET/BIDS. A copy of the street map will also be mailed to each vendor.
. . . .
THIS ADDENDUM FORMS A PART OF THE CONTRACT DOCUMENTS AND MODIFIES THE ORIGINAL
BIDDING DOCUMENTS AND SPECIFICATIONS. THE CONTENTS OF THIS ADDENDUM SHALL BE INCLUDED IN THE CONTRACT DOCUMENTS. CHANGES MADE BY THIS ADDENDUM SHALL TAKE PRECEDENCE OVER THE DOCUMENTS OF EARLIER DATE. . . . .
PLEASE SIGN AND RETURN THIS ADDENDUM IN ITS ENTIRETY WITH THE BID PROPOSAL.
The parties stipulated that Boh Brothers did not return a color map of a District 2 submitted in its bid package for bid No. 50-82551 and Barriere Construction Company did not return a color map of District 2 in its bid package submitted for bid No. 50-82551. Beverly relies on an e-mail from the Superintendent of Public Works which stated: “It is pertinent that the maps be printed and distributed in color.” Beverly argues the Parish acted arbitrarily when it did not reject the bid packages from two bidders who failed to return the original color map оf District 2.
At the hearing, the Parish stated that neither of the two companies that submitted black-and-white photos were low bidders. Thus, the Parish never had to review those bids. Evеn if the Parish had looked at the bid applications closely and felt that these companies did not follow the instructions in the bid, then the Parish would disqualify those bids also.
On appeal, the Parish responds that the reference to the color map was merely for the convenience of the bidders and the bid specifications do not specify that a color or a black-and-white map must be returned. We agree that the bid specifications in the Addendum do not speсifically require that color maps be returned in order for the bid to be valid.
We find, however, that the argument regarding the color maps is not germane. The provision at issue does not concern color maps. Moreover, the relevant provision is clear and unambiguous and not subject to interpretation. Beverly was required to return “this bid package . . . in its entirety.” [emphasis added; upper capitalization omitted]. Beverly was clearly notified through the bid advertisement that the “bid package, including instructions and specifications, must be returned in its entirety for [the] bid to be valid.” [emphasis added; upper capitalization omittеd].
This case is governed by
We find Hamp‘s Const., L.L.C. v. City of New Orleans, 05-0489 (La. 2/22/06), 924 So.2d 104, 110 controlling. In Hamp, the Louisiana Supreme Court interpreted
The legislature changed the wording of this statute several times in an attempt to сhange the law, and to make clear that the requirements of the advertisement for bids and the bid form, as well as the Public Bid Law, shall not be waived. The most recent amendment to the statute serves to emphasize that these requirements cannot be waived under any circumstances, regardless of whether they could be considered as informalities. Accordingly, the public entity should not include any requirements in its advertisement for bids or bid form that it considers insignificant or waivable, becausе once included, these requirements are non-waivable as a matter of law.
. . . .
This prohibition against waiver furthers the public interest because it expressly prevents a public entity from
specifying certain requirements in a bid and later changing those requirements to accept alternate or substitute propоsals. In this sense, the law severely curtails the discretion of the public entity, thereby insuring a level playing field for all bidders and a fair and equitable means by which competing bids might be evaluated to determine the lowest responsible and responsive bidder. One bidder cannot be provided with an advantage over another biddеr due to a waiver.
Id. Hamp emphasized that even “informalities” cannot be waived. Id. As such, the Parish could not waive its advertised bid requirement that the bid package must be returned in its entirety for the bid to be valid. Because Beverly did nоt return the blank corporate resolution form that was in the bid package, the Parish properly rejected Beverly‘s bid as invalid.
Accordingly, the judgment is affirmed.
AFFIRMED.