Opinion
No. 2013 CA 1589.
2014-11-19
PHYLWAY CONSTRUCTION, LLC v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT.
John I. Hulse, IV, Metairie, LA, for Plaintiff/Appellant, Phylway Construction, LLC. Charles F. Seemann, Jr., New Orleans, LA, for Defendant/Appellee, LA Contracting Enterprise, LLC.
John I. Hulse, IV, Metairie, LA, for Plaintiff/Appellant, Phylway Construction, LLC. Charles F. Seemann, Jr., New Orleans, LA, for Defendant/Appellee, LA Contracting Enterprise, LLC.
Murphy J. Foster, III, Steven B. Loeb, Baton Rouge, LA, for Plaintiff–in–Intervention/Appellee, Byron E. Talbot Contractor, Inc.
Courtney E. Alcock, Houma, LA, for Defendant–Appellee, Terrebonne Parish Consolidated Government.
Before KUHN, WELCH, HIGGINBOTHAM, CRAIN, and THERIOT, JJ.
HIGGINBOTHAM, J.
This case arises out of a public bid dispute. At issue is whether the trial court erred in failing to enforce a mandatory requisite in the advertised bid specifications that actually required more of the bidders than outlined in the pertinent version of the Louisiana Public Bid Law, La. R.S. 38:2211 et seq. After reviewing the record and applicable law, we find the trial court erred, and we reverse the judgment of the trial court and remand for further proceedings.
BACKGROUND
In mid-August 2012, the Terrebonne Parish Consolidated Government (“the Parish”) began advertising an invitation for bids pursuant to the Louisiana Public Bid Law for the construction of Phase I of the Bayou Gardens Boulevard Extension—Roadway Embankment Project (“the Project”). The Project bid form, documents, and specifications utilized the Louisiana Uniform Public Works Bid Form (“the bid form”) mandated for public works by the Louisiana Public Bid Law at La. R.S. 38:2212.
The invitation to bidders, as advertised and included in the bid form, provided:
A bid will be considered responsive if it conforms in all respects with the conditions and requirements of the Bidding Documents. In order to be considered responsive, the Louisiana Uniform Public Works Bid Form must: (a) be fully completed, signed and be responsive in all respects to the Bidding Documents; (b) be made on the Bid Forms provided and submitted intact. (Emphasis added.)
The bid form contained a “DEFINED TERMS” section, defining “Bidding Documents” as:
Documents usually including advertisement, bid notice or invitation to bidders, instructions to bidders, bid form, form of contract, contract documents and specifications, forms of bonds, conditions of contract, drawings, all addenda issued prior to receipt of bids, specifications addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract. (Emphasis added.)
Additionally, the bid form contained a section entitled “PREPARATION AND SUBMISSION OF BIDS” that included a requirement for an Attestation Clause regarding past criminal convictions of bidders. The requirement specifically provided that each bidder, as opposed to the lowest bidder required by the pertinent version of La. R.S. 38:2227(A)
, was mandatedto submit the completed criminal record Attestation Clause within ten days after the opening of the bids. The bid form stated, in pertinent part:
.Louisiana Revised Statutes 38:2227(A) was enacted in 2010, and it initially required each bidder to submit a criminal record conviction attestation; however, the statute was amended by Acts 2012, No. 598, § 1, effective August 1, 2012, which was a few weeks before the Parish began advertising for the Project. The amended version of La. R.S. 2227(A) provides:
Each public entity advertising and letting for bid a public works contract shall require the lowest bidder, in addition to the provisions of R.S. 38:2212(A)(3)(c)(ii), after the opening of bids, if a sole proprietor, to attest that he has not been convicted of, or has not entered a plea of guilty or nolo contendere to any of the crimes or equivalent federal crimes listed in Subsection B of this Section. The lowest bidding entity shall submit an attestation that no individual partner, incorporator, director, manager, officer, organizer, or member, who has a minimum of a ten percent ownership in the bidding entity, has been convicted of, or has entered a plea of guilty or nolo contendere to any of the crimes or equivalent federal crimes listed in Subsection B of this Section. (Emphasis added.)
Louisiana Revised Statutes 38:2212(A)(3)(c)(ii) provides, in pertinent part: “Other documentation required shall be furnished by the low bidder within ten days after the bid opening.” (Emphasis added.) Louisiana Revised Statutes 38:2212(A)(1)(b)(ii)(bb), amended by Acts 2012, No. 823, § 1, effective August 15, 2012, provides, in pertinent part: “Other documentation and information required including but not limited to the low bidder's attestation pursuant to R.S. 38:[2227] shall be furnished by the low bidder within ten days after the bid opening. The ten-day period shall not be altered or waived by any public entity ...” (Emphasis added.)
12.6 In accordance with La. R.S. 38:2227, each bidder on this project must submit the completed Attestation Clause (Past Criminal Convictions of Bidders) form found within these bid documents. The fully executed Attestation Clause form shall be RECEIVED by the TERREBONNE PARISH CONSOLIDATED GOVERNMENT within ten (10) days after the opening of bids. The fully executed Attestation Clause form is NOT required to be included with the bid form and is to be submitted separately within ten (10) days after the opening of bids. The submission should be identified with the name of the bidder, the project on which he is bidding, and the words ATTESTATION CLAUSE. Forms may be sent via U.S. Mail, express mail, or hand delivered[.] (Emphasis added.)
The bid form also contained an “AWARD OF CONTRACT” section that provided, in pertinent part:
16.3 In order to be responsive, prior to award and as a condition of award, each bidder must submit the additional documentation required by the Bidding Documents or requested by the OWNER. (Emphasis added.)
* * *
16.10 If the Contract is to be awarded for [the Project], it will be awarded to the lowest, qualified, responsive and responsible Bidder as determined by the evaluation of the corresponding Bid. (Emphasis added.)
* * *
16.12 In the event of failure of the lowest responsive, responsible Bidder to sign the Contract ... the Owner may award the Contract to the next lowest responsive, responsible Bidder. (Emphasis added.)
After advertising the Project, the Parish received nine bids by the posted deadline of September 20, 2012. On that date, the Parish opened the bids and found that LA Contracting Enterprise, LLC (“LACE”) was the apparent low bidder. The second lowest bidder was Byron E. Talbot Contractor, Inc. (“Talbot”), and the third lowestbidder was Phylway Construction, LLC (“Phylway”). Phylway issued a formal written letter of protest with the Parish on October 2, 2012, more than ten days after the opening of the bids, challenging the responsiveness of the LACE and Talbot bids and requesting that the Parish award the Project to Phylway, who claimed to be the lowest responsive, responsible bidder. Phylway contended that the LACE and Talbot bids failed to comply with several requirements listed in the bid specifications and/or Bidding Documents, specifically noting their failure to submit the mandatory criminal record Attestation Clause in a timely manner.
Talbot submitted its criminal record Attestation Clause on October 3, 2012, after the ten-day time period since the bid opening. Despite Phylway's protest, the Parish awarded the Project to LACE on October 10, 2012, noting that LACE's submission of its criminal record Attestation Clause with its bid documents before the opening of the bids was not a violation of the requirements.
The only bid form requirement that is pertinent to this appeal involves the mandatory criminal record Attestation Clause, obliging each bidder to submit the attestation within ten days of the bid opening. Thus, we pretermit consideration of any other irregularity in the bids.
On October 17, 2012, Phylway filed a petition seeking mandamus to compel the Parish to reject the alleged non-responsive bids of LACE and Talbot and award the Project to Phylway as the lowest responsive and responsible bidder. Phylway also requested a temporary restraining order (TRO) and an injunction against the Parish to restrain and prohibit the execution of any contract with LACE or Talbot for the Project. The trial court issued a TRO on October 18, 2012, and scheduled a hearing on the requested injunctive relief for October 26, 2012. The Parish opposed the petition and before the hearing, Talbot and LACE intervened, each claiming to be the apparent low bidder on the Project.
The record does not contain a copy of Talbot's petition for intervention, but it does contain Talbot's memorandum in support of its intervention.
After the hearing, the trial court found that LACE's bid was non-responsive, because it lacked the required articles of organization requested in the Parish's bid specifications. In its ruling as to LACE, the trial court did not discuss the criminal record Attestation Clause requirement because of the other problem with LACE's bid. The trial court acknowledged that Phylway's bid was responsive in all respects,
but found that Talbot should be awarded the Project as the lowest responsive bidder ahead of Phylway. The trial court noted a “common sense interpretation” of the criminal record Attestation Clause requirement was that Talbot had ten days from the time it was determined to be the low bidder before it had to file the required criminal record attestation. Thus, the trial court ruled that even though Talbot had not filed its criminal record attestation within ten days of the bid opening, it had filed the Attestation Clause before the hearing where it was determined to be the low bidder, so the trial court concluded that Talbot's bid was responsive. The trial court signed a judgment on January 14, 2013, denying Phylway's request for injunctive relief and issuing a writ of mandamus ordering the Parish to award the Project to Talbot.
The record reflects that Phylway filed its criminal record Attestation Clause on September 28, 2012, within ten days of the bid opening on September 20, 2012.
Phylway appealed, assigning three errors regarding the trial court's ruling as it applied to Talbot: (1) the trial court erred in failing to enforce the mandatory requirements of the advertised bid specifications, which required each bidder to submit to the Parish, within ten days of the bid opening, a fully executed criminal record Attestation Clause; (2) the trial court erred in failing to adhere to mandatory requirements of the Public Bid Law and rulings of the Louisiana Supreme Court, which provide that a public entity has no discretion to waive requirements of its own advertised and published bid specifications; and (3) the trial court erred in failing to find that Talbot's bid was non-responsive and failing to order the Parish to award the contract for the Project to Phylway. We note that Phylway has not raised any error regarding the trial court's ruling as to LACE and LACE has not filed its own appeal nor answered Phylway's appeal. Thus, we decline any consideration of the trial court's ruling that LACE's bid was non-responsive.
SeeUniform Rules—Courts of Appeal, Rule 1–3 (courts of appeal review only issues that are submitted to the trial court and are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise). See also Police Jury of Ascension Parish v. Shaffett, 461 So.2d 1072, 1072–73 (La.App. 1st Cir.1984).
LAW AND ANALYSIS
This litigation is governed by Louisiana's Public Bid Law, La. R.S. 38:2211 et seq. , which is a prohibitory law founded on public policy. Hamp's Construction, L.L.C. v. City of New Orleans, 2005–0489 (La.2/22/06), 924 So.2d 104, 107; State Machinery & Equipment Sales, Inc. v. Iberville Parish Council, 2005–2240 (La.App. 1st Cir.12/28/06), 952 So.2d 77, 82–83. The Public Bid Law was enacted in the interest of the taxpaying citizens of this State for the purpose of protecting them against contracts awarded through favoritism and involving exorbitant and extortionate prices. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004–0211 (La.3/18/04), 867 So.2d 651, 656.
A political entity such as the Parish has no authority to take any action that is inconsistent with the Public Bid Law. Id. Louisiana Revised Statutes 38:2212(A)(1)(b)(i) clearly and unambiguously provides that the public entity may not waive (1) any requirements of the Public Bid Law, (2) any requirements declared in the advertisement for bid, or (3) any requirements stated on the bid form. Hamp's Construction, 924 So.2d at 110–11. Consequently, once the public entity establishes a requirement in its advertisement or bid form, that requirement must be uniformly followed by all bidders. Id. at 111.
In light of Hamp's Construction and its progeny, it is clear that when a public entity, such as the Parish in this case, elects to place certain requirements that differ from statutory requirements in its advertisements for bids and on its bid forms, then that entity is bound by those advertised requirements and bid form specifications in addition to the statutory requirements, and may not choose to waive them at a later date. We extend this reasoning to include requirements and instructions in advertisements and bid forms that may exceed what is required by the Public Bid Law, as long as the statutory requirements are also met. See Concrete Busters of Louisiana, Inc. v. Board of Com'rs of the Port of New Orleans, 2010–1172 (La.App.4th Cir.2/2/11), 69 So.3d 484, 489. Thus, we conclude the Parish was bound by its advertised instructions and bid form requirement that “each bidder” submit a completed criminal record Attestation Clause within ten days after the opening of the bids, since “each bidder” would necessarily include the “lowest bidder” that is highlighted in the amended version of the criminal record Attestation Clause required by the statute. SeeLa. R.S. 38:2227(A), as amended by Acts 2012, No. 598, § 1, effective August 1, 2012, and La. R.S. 38:2212(A)(1)(b)(ii)(bb), as amended by Acts 2012, No. 823, § 1, approved June 14, 2012, and effective August 15, 2012.
The Parish's requisites regarding the criminal record Attestation Clause for “each bidder” obviously goes over and above the amended statutory requirements found in the Public Bid Law, which provides that only the “lowest bidder” must submit the Attestation Clause within ten days after the bid opening. However, we are not persuaded that the extra requirement in the bid form necessitates a different result in this case. The starting point in the interpretation of any statute is the language of the statute itself. In re Clegg, 2010–0323 (La.7/6/10), 41 So.3d 1141, 1154. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. Id. The meaning and intent of a law is determined by considering the law in its entirety, and all other laws on the same subject matter, and by placing a construction on the law that is consistent with the terms of the law and with the obvious intent of the legislature in enacting the law. Id. Questions of law, such as the proper interpretation of a statute, are reviewed by this court under a de novo standard of review, without deference to the legal conclusions of the lower court. Saizan v. Pointe Coupee Parish School Bd., 2010–0757 (La.App.1st Cir.10/29/10), 49 So.3d 559, 564, writ denied,2010–2599 (La.1/14/11), 52 So.3d 905.
The record reflects that Talbot, as a bidder on the Project, did not submit its criminal record Attestation Clause within ten days after the bid opening as plainly required by the Parish's bid form specifications, as well as the amended version of the statute. SeeLa. R.S. 38:2212(A)(1)(b)(ii)(bb) ( “The ten-day period shall not be altered or waived by any public entity [.]”) Conversely, Phylway did timely file its criminal record Attestation Clause within the ten-day period. Louisiana Revised Statutes 38:2212(A)(1)(b)(i) clearly states that the provisions and requirements of the statute and those “stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.” (Emphasis added.) The statute unambiguously declares that the requirements in the bid form (that each bidder must submit a completed criminal record Attestation Clause within ten days after the opening of the bids) may not be waived by the public entity, the Parish, in this case. We disagree with the trial court's interpretation and application of La. R.S. 38:2212 and 38:2227, allowing Talbot ten days after the trial court had determined Talbot to be the low bidder to submit the criminal record Attestation Clause. Talbot did not timely submit the required Attestation Clause within ten days of the opening of the bids. After considering the Public Bid Law in its entirety, we conclude the trial court erred in finding that Talbot was the next lowest responsive, responsible bidder and in denying injunctive and mandamus relief for Phylway.
The record does not reflect whether the Project proceeded with Talbot; therefore, it is not known at this time whether the injunctive and mandamus remedies are still available to Phylway. Since Phylway timely sought an injunction, it may be entitled to recover damages that it sustaineddue to the Parish's award of the Project pursuant to a non-responsive bid. See Command Const. Industries, L.L.C. v. City of New Orleans, 2013–0524 (La.App.4th Cir.10/23/13), 126 So.3d 716, 723. See also D & O Contractors, Inc. v. St. Charles Parish, 2000–882 (La.App.5th Cir.2/28/01), 778 So.2d 1285, 1290, writ denied,2001–1213 (La.6/29/01), 794 So.2d 812. We make no determination as to whether Phylway is entitled to damages, as that issue is not currently before us. Accordingly, we remand this matter to allow Phylway to further pursue its claims for injunctive relief, mandamus, or damages.
CONCLUSION
We conclude that the trial court erred when it improperly awarded the Project to Talbot, who was a non-responsive bidder. The trial court's judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal, totaling $2,341.50, are equally assessed between defendant/appellee, Terrebonne Parish Consolidated Government, and plaintiff-in-intervention/appellee, Byron E. Talbot Contractor, Inc.
REVERSED AND REMANDED. KUHN, J., dissents and assigns reasons.
WELCH, J, dissents for the reasons assigned by Judge KUHN and assigns additional reasons.
KUHN, J., dissenting.
I disagree with the majority reversal and remand and would, instead, affirm the trial court's judgment that orders the Terrebonne Parish Consolidated Government to award the project to Byron E. Talbot Contractor (BET). Under the plain language of the present version of La. R.S. 38:2212, the trial court correctly concluded that BET was a responsive bidder with the second lowest bid. I disagree that “Hamp's Construction[, 2005–0489 (La.2/22/06), 924 So.2d 104, 110–11] and its progeny” mandate a reversal.
As noted in Hamp's Construction, at the time of the supreme court's decision, La. R.S. 38:2212(A)(1)(b) stated, “The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.” Subsequent to that decision, by La. Acts 2008, No. 727, § 1, the Louisiana legislature amended La. R.S. 38:2212(A)(1)(b), re-designating the provisions quoted in Hamp's Construction as subparagraph (i) and adding, among others, the following provisions:
(ii)(aa) The division of administration, office of facility planning and control, shall develop and prescribe through the promulgation of rules and regulations in accordance with the Administrative Procedure Act the bid form necessary to obtain the information and to implement the sections of the bid form provided for in this Item to be utilized for the public bid of public works projects. The bid form developed shall require only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.
(bb) Other documentation and information required shall be furnished by the low bidder at a later date, in accordance with the Bidding Documents. (Emphasis added.)
As of La. Acts 2012, No. 823, § 1, subparagraph (bb) was amended to state in pertinent part:
Other documentation and information required including but not limited to the low bidder's attestation pursuant to R.S. [38:2227] shall be furnished by the low bidder within ten days after the bid opening. The ten-day period shall not be altered or waived by any public entity.... (Emphasis added.)
Reading Subsection (A)(1)(b)(i) in pari materia with subparagraphs (ii)(aa) and (bb), the statute states in plain language, “The provisions and requirements of this Section ... and [the provisions and requirements] required on the bid form shall not be waived by any public entity.” Subparagraph (A)(1)(b)(ii)(aa) expressly describes the “provisions and requirements required on the bid form” as “only the information necessary to determine the lowest bidder and the following sections and information: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth.” Therefore, under the plain language of La. R.S. 38:2212(A)(1)(b), the low bidder's attestation pursuant to La. R.S. 38:2227 is not among “the provisions and requirement[s] required on the bid form,” (emphasis added) which cannot be waived by the public entity.
According to the actual bid form the Terrebonne Parish Consolidated Government provided to potential bidders, Section 12.6 stated:
In accordance with La. R.S. 38:2227, each bidder on this project must submit the completed Attestation Clause (Past Criminal Convictions of Bidders) form found within these bid documents. The fully executed Attestation Clause form shall be RECEIVED by the TERREBONNE PARISH CONSOLIDATED GOVERNMENT within ten (10) days after the opening of the bids. The fully executed Attestation Clause form is NOT required to be included with the bid form and is to be submitted separately within ten (10) days after the opening of the bids. The submission should be identified with the name of the bidder, the project on which he is bidding, and the words ATTESTATION CLAUSE. Forms may be sent via U.S. Mail, express mail, or hand delivered....
At the time of the invitation to bid, La. R.S. 38:2227 provided:
Each public entity advertising and letting for bid a public works contract shall require the lowest bidder, in addition to the provisions of R.S. 38:2212(A)(3)(c)(ii), after the opening of bids, if a sole proprietor, to attest that he has not been convicted of, or has not entered a plea of guilty or nolo contendere to any of the crimes or equivalent federal crimes listed [below].
Thus, Section 12.6, which references La. R.S. 38:2227 whose provisions mandate only that the public entity require “ the lowest bidder ” to submit an attestation of no proscribed criminal activity, expressly requires that “ each bidder ” submit the attestation and creates an ambiguity on the face of the bid form.
Because the attestation requirement is not among “the provisions and requirement[s] required on the bid form” (emphasisadded) under La. R.S. 38:2212(A)(1)(b)(ii), i.e., the attestation is not “information necessary to determine the lowest bidder” or the “Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Bid Total, Signature of Bidder, Name, Title and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution and Louisiana Contractors License Number, and on public works projects where unit prices are utilized, a section on the bid form where the unit price utilized in the bid shall be set forth,” the Terrebonne Parish Consolidated Government may waive the application of the provisions of Section 12.6 in accordance with the plain language of La. R.S. 38:2212(A)(1)(b)(i).
In applying the plain language of La. R.S. 38:2212(A)(1)(b) to the facts of this case, it is important to note that when the supreme court applied the Public Bid Law to the facts before it in Hamp's Construction, the provisions of subparagraph (A)(1)(b)(ii)(aa) and (bb) as they exist today had not yet been enacted by the legislature. In light of the lack of any statutory language defining “the provisions and requirements required on the bid form” under La. R.S. 38:2212(A)(1)(b), the construction undertaken in Hamp's Construction is inapposite to the case at hand.
It is undisputed that BET supplied the “other documentation” attestation of no proscribed criminal activity prior to the trial court's determination that it was a responsive bidder with the second lowest bid and in conformity with La. R.S. 38:2212(A)(1)(b)(ii)(bb). Thus, the trial court correctly ordered Terrebonne Parish Consolidated Government to award the project to BET. Accordingly, I would affirm the judgment.
WELCH, J., dissenting.
I disagree with the majority opinion for the reasons set forth by Judge Kuhn. In addition, I believe that the Parish did not intend for there to be additional requirements on the bidders other than those established by the version of La. R.S. 38:2227 that was in effect at the time the Parish began advertising for the project. In accepting the bid of Talbot, which complied with the amended version of La. R.S. 38:2227, the Parish evidenced its intent that those were the conditions it intended to place on the bidders. There was no evidence that the Parish intended to make the requirements of the prior law an additional requirement on the bidders.
The purpose of the bid process is to protect the taxpaying citizens of this state by ensuring that public contracts go to the lowest competent bidder, thus saving taxpayer dollars. See Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004–0211 (La.3/18/04), 867 So.2d 651, 656. Talbot was the lowest competent bidder. By reversing the trial court's decision in this matter, the majority thwarts this purpose as the Parish will not only have to pay Talbot for the work already performed under the contract, but it will also have to pay damages to Phylway, which will ultimately be borne by the tax payers and the public fisc.
Thus, I respectfully dissent.
ON REHEARING
Rehearing denied.
KUHN, J., dissenting.
I disagree with the majority's denial of the rehearing. I would grant the request for rehearing filed by Byron E. Talbot Contractor (BET) and affirm the trial court.
In LL&G Construction, Inc. v. Greater Lafourche Port Commission, 2011–1024 (La.5/3/12), 2012 WL 1564350 (an unpublishedappeal), this court held that a public entity's award of a bid to a bidder who submitted its criminal record attestation with the bid documents did not violate either the applicable statutory or the actual bid document temporal requirements. The bid documents in LL&G set a 48–hour time period after the opening of bids for bidders to submit the criminal record attestation. The LL&G court noted that there is no definite time period for submission of the attestations under La. R.S. 38:2227 and adopted the trial court's analysis in toto. 2011–1024 at p. 4. Thus, the LL&G court concluded that the public entity could not require bidders to submit the attestation contemporaneously with their bids because such a requirement would violate the general requirement of La. R.S. 38:2227 “that the public entity require each bidder, ‘after the opening of bids ... to attest ...’ ” to its criminal record under an application of the plain language of La. R.S. 38:2227 (as it existed before La. Acts 2012, No. 598, § 1). 2011–1024 at p. 3.
Presently, the statutory requirement of La. R.S. 38:2227 is that the public entity require the lowest bidder after the opening of bids to make (and hence submit) its attestation. Applying the rationale adopted by the plurality opinion in LL&G, the requirement that “each” bidder submit a criminal record attestation rather than that the “lowest” bidder submit the attestation clearly violates the general requirement of La. R.S. 38:2227.
I disagree with the majority's premise that the Terrebonne Parish Consolidated Government's “requisites regarding the criminal record Attestation Clause for ‘each bidder’ obviously goes over and above the amended statutory requirements found in the Public Bid Law, which provides that only the ‘lowest bidder’ must submit the Attestation Clause within ten days after the bid opening.” Phylway Construction, LLC v. Terrebonne Parish Consolidated Gov., 2013–1589, p. 4 (La.App. 1st Cir.9/5/14), 153 So.3d 516, 522. Where an attestation is requested, the sworn written statements under oath exposes the one attesting to criminal sanctions for any errors. It is obvious that in modifying this requirement by La. Acts 2012, No. 598, § 1 in La. R.S. 38:2227, the legislature was mindful of the privacy rights of unsuccessful bidders. There is absolutely no advantage to the public entity to have attestations from unsuccessful bidders.
As I noted in my dissent, the majority's ultimate error, of course, lies in its reasoning that Hamp's Construction L.L.C. v. City of New Orleans, 2005–0489 (La.2/22/06), 924 So.2d 104, is still good law vis-à-vis waivers because under the subsequent enactment of La. R.S. 38:2112(A)(1)(b)(ii)(aa) and (bb), the criminal record attestation is not among the provisions and requirements required of the bid documents such that Terrebonne Parish Consolidated Government may under the Public Bid Law legally waive it insofar as the “each” bidder requirement (under its bid documents) and conform this requirement to the present state of the Public Bid Law, which is that the “lowest” bidder (BET) could, within 10 days attest to its criminal record. Therefore, the trial court correctly concluded that only when BET became the lowest bidder did the attestation submission clock commence. And under the LL&G holding, BET's submission before the expiration of the 10–day period was not a fatal defect. 2011–1024 at p. 4. Accordingly, I would grant the rehearing and affirm the trial court's judgment.