Hartman Enterprises, Inc. v. Ascension-St. James Airport and Transp. Authority

• Decision Date: 22 February 1991
• Docket Number: ASCENSION-ST,No. CA,CA
• Citation: 582 So.2d 198
• Parties: HARTMAN ENTERPRISES, INC. v.JAMES AIRPORT AND TRANSPORTATION AUTHORITY, et al. 90 2174.
• Court: Court of Appeal of Louisiana — District of US

Page 198

582 So.2d 198

HARTMAN ENTERPRISES, INC. v. ASCENSION-ST. JAMES AIRPORT AND TRANSPORTATION AUTHORITY, et al.

No. CA 90 2174.

Court of Appeal of Louisiana First Circuit.

Feb. 22, 1991.

Rehearing Denied May 2, 1991.

Writ Denied June 28, 1991.

Jess J. Waguespack, Napoleonville, for plaintiff.

Victor L. Marcello, Donaldsonville, for defendant Ascension-St. James Airport Auth.

Russell W. Wray, Baton Rouge, for defendant M. Matt Durand.

Before COVINGTON, C.J., and LANIER and GONZALES, JJ.

GONZALES, Judge.

In June, 1990, the Ascension-St. James Airport and Transportation Authority ("Authority") advertised and solicited for competitive bids pursuant to Louisiana Public Bid Law for the first phase of construction of the Ascension-St. James Airport. The bid solicitation required that each bidder submit a base bid for the work on the runway, plus bids for four additional alternatives for segments of work to be performed on the taxiway, apron, box culvert and fencing. The specifications required that bidders submit bid security in an amount equal to five percent of the total bid amount, which included the base bid and all four alternatives.

Ten prospective contractors submitted sealed bids. Of the ten, the low bidder on the base project was M. Matt Durand, Inc. The low bidder on the base bid plus alternative one was Hartman Enterprises, Inc.

When the bids were opened, it was noted that Hartman Enterprises's bid was irregular because the bid bond was in the amount of "five percent of total amount bid/not to exceed $75,000.00 dollars." The bond did not equal five percent of the total bid for the base project plus all four alternatives.

The engineering consultant, Berger, Barnard and Thomas, Inc., recommended that the contract be awarded to Hartman Enterprises, Inc., for the base bid plus the first alternative subject to FAA approval and the availability of sufficient grant funds.

Subsequent to that decision, counsel for the Authority requested a written opinion from the Office of the Attorney General on the bid selection. The opinion submitted concluded Hartman's bid could be rejected and stated the Authority could award the contract to the next lowest bidder or cancel the solicitation and seek new bids.

The Authority then met on August 22, 1990, and decided to award the contract on the base bid only, leaving the four alternatives for a later time. Because M. Matt Durand was the low bidder on the base bid, the Authority passed a resolution to accept M. Matt Durand's bid. Hartman and his counsel were present at the meeting on August 22, 1990, and presented a letter protesting the award of the contract to Durand.

On August 24, 1990, the engineering firm issued to Durand a formal notice of contract award. On August 30, 1990, a written contract was signed by Durand and the Authority. The engineering firm issued Durand a notice to proceed with the work on September 4, 1990, and Durand began work on the project.

On September 23, 1990, Mr. Hartman made an aerial inspection of the work site and observed the work in progress. Mr. Hartman testified at trial that only a small percentage of the work had been done on September 23, 1990, and yet he waited until October 9, 1990, to file a petition for an injunction to halt progress on the job. He never attempted to obtain a Temporary Restraining Order to halt the work in progress until a hearing could be held, although he testified that he knew this was a short-term contract.

After the petition was filed by Hartman on October 9, 1990, seeking a mandamus, injunction and damages, the hearing was not held until one month later on November 5, 1990.

The hearing was continued on November 7, 1990, and at that time Larry LeBlanc, Vice-President of Berger, Barnard and Thomas, testified that the project was over 90 percent complete, with only some finish up work left.

On November 21, 1990, the trial court issued an order granting a preliminary injunction and mandamus. The order further overruled the dilatory and peremptory exceptions raising the objections of prescription, no cause of action, improper cumulation and vagueness filed by the Authority. The defendant Authority filed an application for writ of certiorari to this Court and defendant Durand did likewise. These writs were denied.

On November 26, 1990, upon joint motion of the Authority and Durand, an appeal was taken. On November 27, 1990, upon motion of Hartman Enterprises, an appeal was taken from the trial court judgment only insofar as it failed to grant plaintiff the writ of mandamus ordering the Authority to restore the award of the base and additive alternate one to Hartman.

When writs were denied by this Court, a joint application for peremptory writs of certiorari were filed by the Authority and Durand.

On December 20, 1990, the Louisiana Supreme Court issued an order which set aside the request for injunctive relief, reversing the preliminary injunction which had restrained the Authority and Durand from any further work on the project, and reversing the mandatory injunction which had required Durand, Inc. to return to the Authority payment received for work done in excess of actual direct costs. The application was otherwise denied, and this Court was ordered to expedite the pending appeal.

The sole remaining issue to be decided is whether plaintiff has a cause of action for damages. However, although ostensibly we are considering only the peremptory exception raising the objection of no cause of action, because the parties asked us to consider all the evidence, we are in essence deciding the merits of the case.

In the recent case of Airline Construction Co., Inc. v. Ascension Parish School Board, 568 So.2d 1029, 1033 (La.1990), the court found that:

[A]n unsuccessful bidder on a public contract who fails to resort to the relief granted by statute by attempting to enjoin timely the execution or the performance of the contract, when the facts necessary for injunctive relief are known or readily ascertainable by the bidder, is precluded from recovering damages against the public body. (Emphasis Added)

Under the Airline decision, timeliness of suit for injunctive relief depends upon the facts and circumstances of each case,

[I]ncluding, among other things, the knowledge possessed by the attacking bidder concerning the wrongful award of the contract, the point in time the bidder acquired this knowledge, the point in time that the public body became indebted to the sucessful bidder, and the time period between the awarding of the illegal contract and the completion of construction.

Following the test in Airline, 568 So.2d at 1035, the whole record shows that Hartman had "readily ascertainable" to him sufficient facts to bring a timely request for injunctive relief and the record further reveals that under the facts of this case he did not bring an action for injunctive relief timely, and therefore under Airline he is precluded from recovering damages against the public body.

We recognize that at the time the suit was instituted on October 9, 1990, the job was not substantially complete; however, plaintiff sought no Temporary Restraining Order, nor did he apparently insist upon a hearing on the injunction within ten days. Having failed to insist upon the rights available to him, they must be considered to have been waived.

In the Airline opinion, the Louisiana Supreme Court likened the waiver concept to the contemporaneous objection rule. However, conceptually, it seems more likened to prescription or laches. ¹ We note that Airline also recommends legislation be utilized to create both a prescriptive period and a speedy appeal process.

Under Airline, plaintiff has not met the conditions necessary to maintain a cause of action for damages and therefore the trial court erred in overruling the peremptory exception raising the objection of no cause of action. Because this Court concludes the plaintiff has no cause of action, it is not necessary for this Court to address the peremptory exception raising the objection of no right of action or any other issue raised in this case.

For the foregoing reasons, the judgment of the trial court overruling the peremptory exception raising the objection of no cause of action is reversed and judgment is rendered herein in favor of the Authority and Durand and against Hartman sustaining the peremptory exception raising the objection of no cause of action and dismissing Hartman's petition with prejudice. ² Hartman is cast for all costs.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

Rehearing denied.

GONZALES, Judge, assigns reasons for the denial of the rehearing.

I agree with the plaintiff that La.R.S. 38:2220(B) as amended was in effect at the time the bid was awarded and the contract entered into. I further agree that La.R.S. 38:2220(B) as amended gives a right of action to bring an ordinary proceeding. However, I believe that if plaintiff has an ordinary cause of action, it is one to "nullify a contract entered into in violation of this Part." I don't interpret this as a cause of action for damages. The word damages does not appear in the new law, does not...