Merrick, L.L.C. v. Airport Auth. for Airport Dist. No. 1 of Calcasieu Parish

• Decision Date: 06 November 2019
• Docket Number: 19-185
• Citation: 283 So.3d 596
• Parties: MERRICK, L.L.C. v. The AIRPORT AUTHORITY FOR AIRPORT DIST. NO. 1 OF CALCASIEU PARISH
• Court: Court of Appeal of Louisiana — District of US

283 So.3d 596

MERRICK, L.L.C.

v.The AIRPORT AUTHORITY FOR AIRPORT DIST. NO. 1 OF CALCASIEU PARISH

19-185

Court of Appeal of Louisiana, Third Circuit.

November 6, 2019

Murphy J. Foster, III, Jacob E. Roussel, Breazeale, Sachse & Wilson, L.L.P, P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR PLAINTIFF/APPELLANT: Merrick, L.L.C.

H. Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., One Lakeside Plaza, Fourth Floor, Lake Charles, LA 70601, (337) 436-9491, COUNSEL FOR INTERVENOR/APPELLEE: BDS Constructors, LLC

Robert S. Kleinschmidt, Jr., Assistant District Attorney, Calcasieu Parish District Attorney's Office, 901 Lakeshore Drive, Sixth Floor, Lake Charles, LA 70601, (337) 437-3400, 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., 1100 Poydras Street, Suite 1100, New Orleans, LA 70163, (504) 581-3300, COUNSEL FOR OTHER APPELLEE: Louisiana Associated General Contractors, Inc.

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

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 present on behalf of "MK Contractors," an alleged alias of BDS. We agree.

"On appeal, the issuance or denial of a preliminary injunction will be reversed only if the trial court abused its discretion." Derouen's Heavy Equip., Inc. v. Lafayette City-Parish Consol. Gov't, 08-1077, p.3 (La.App. 3 Cir. 3/4/09), 7 So.3d 48, 51. However, the standard of review for a decision to grant or deny a permanent injunction is the manifest error standard. Mary Moe, L.L.C. v. La. Bd. of Ethics , 03-2220 La. 4/14/04, 875 So.2d 22.

Where, as in this case, a decision to grant or deny a permanent injunction is based on a prima facie showing, which is the burden of proof for granting a preliminary injunction, the standard of review is the manifest error standard for factual findings and de novo for issues of law. Id. In applying the manifest error standard, the Court may not set aside the District Court's factual findings unless they are "clearly wrong." Stobart v. State , 617 So.2d 880, 882 (La.1993) (quoting Rosell v. ESCO , 549 So.2d 840 (La.1989) ).

The Supreme Court of Louisiana announced in Stobart the appropriate test for applying the manifest error standard of review:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Id. at 882 (quoting Mart v. Hill , 505 So.2d 1120, 1127 (La.1987) ).

In Lemoine Co., L.L.C. v. Lafayette Airport Commission , 10-0833, pp. 2-3 (La. App. 3 Cir. 12/8/10), 54 So.3d 140, 142, this court noted:

This litigation is governed by Louisiana Public Bid Law, La.R.S.38:2212, et seq. , a law which "was enacted in the interest of the taxpaying citizens and has for its purpose their protection against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices." Haughton Elevator Div. v. State Div. of Admin. , 367 So.2d 1161, 1164 (La.1979).

Given the nature of the legislative mandate, a political entity such as the Airport Commission has no authority to take any action that is inconsistent with the public bid law. Broadmoor, L.L.C., 867 So.2d 651. Specifically, the public entity may not waive any requirements of the public bid law, any requirements stated in the advertisement for bid, nor any requirement stated on the bid form. La.R.S. 38:2212A(1)(b); Hamp's Constr., L.L.C., 924 So.2d 104.

Louisiana Revised Statutes 38:2212(A)(1) provides that "All public work ... to be done by a public entity shall be advertised and let by contract to the lowest responsible and responsive bidder who bid according to the bidding documents as advertised, and no such public work shall be done except as provided in this Part." "Although the terms ‘responsive’ and ‘responsive bidder’ are not defined by statute, they generally refer to whether a particular bid or bidder complies with the bid law's statutory requirements and the requirements stated in the bid documents as advertised by the public entity." Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1038, writ denied , 17-83 (La. 2/24/17), 216 So.3d 59. Pursuant to La.R.S. 38:2220(A), "[a]ny purchase of materials or supplies, or any contract entered into for the construction of public works, contrary to the provisions of this Part shall be null and void." In other words, "[t]he Public Bid Law could not be more clear in stating that a bidder's failure to comply with every detail can invalidate the bid. The consequences of such defects should be on the bidder who prepares the bid." Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., 04-0211, 04-0212 (La. 3/18/04), 867 So.2d 651.

One requirement of the Public Bid Law which a public entity is not entitled to waive is that set forth in La.R.S. 38:2212(I), which states:

When a design professional or

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