Opinion
2023 CA 0984
03-22-2024
29:11 ACADEMY v. LOUISIANA DEPARTMENT OF EDUCATION
R. Christopher Fruge, Baton Rouge, Louisiana Counsel for Appellant Defendant-The Louisiana Department of Education. Ronald S. Haley, Jr. Counsel for Appellee Baton Rouge, Louisiana Plain tiff-29:11 Academy.
Appealed from the Nineteenth Judicial District Court Parish of East Baton Rouge • State of Louisiana Docket Number C725408 • Section 26, The Honorable Richard Moore, Presiding Judge.
R. Christopher Fruge, Baton Rouge, Louisiana Counsel for Appellant Defendant-The Louisiana Department of Education.
Ronald S. Haley, Jr. Counsel for Appellee Baton Rouge, Louisiana Plain tiff-29:11 Academy.
Before: Welch, Wolfe, and Stromberg, JJ.
WELCH, J.
In this proceeding for judicial review regarding an application for a grant submitted by the plaintiff, 29:11 Academy, to the Louisiana Department of Education ("LDE") for a community learning center, the LDE appeals a judgment of the district court. The judgment denied the plaintiffs petition and affirmed the decision of the Commissioner of the Louisiana Division of Administration ("the Commissioner"), but it vacated the Commissioner's decision that the plaintiffs application be re-scored and ordered a second re-score of the plaintiffs application. For the reasons that follow, we affirm in part, reverse in part, and vacate in part.
BACKGROUND
On March 22, 2022, the LDE published a Request For Applications ("RFA") to obtain competitive applications from organizations that were interested in operating a 21st Century Community Learning Center ("21 CCLC") pursuant to contracts with the LDE. Under the 21 CCLC program, the LDE uses federal funds to enter into contracts with organizations that will provide after-school academic enrichment and other educational programs that are designed to reinforce and complement the regular academic programs offered to students by their schools. The due date for organizations to submit their applications to the LDE was April 22, 2022.
According to the RFA, each application was to be evaluated using a 100-point scale on a number of criteria designed to assess the overall quality of the program offered by each organization. An organization's application had to gamer a minimum score of 75 points or higher (of the available 100 points) in order to be eligible for funding from the LDE. Each organization's application was to be scored by a team of three evaluators under the supervision of a team lead. The evaluators were an "an external peer review evaluation team" designated by the LDE. These reviewers were "highly qualified individuals with a strong knowledge of research- based, quality after-school programming ...Each application was to be redacted to remove any information that could identify the organization, or anyone associated with the organization, before the applications were given to the evaluation team. Each application was also assigned an alphanumeric code to ensure the anonymity of all applications in order to avoid any appearance of bias or favoritism in the evaluation and scoring process. Each member of the scoring team was also identified in the scoring process by an alphanumeric code.
The LDE received 48 applications from organizations around the state; 38 of those applications were approved for funding and 10 of those applications were denied funding, including the application of the plaintiff. The plaintiffs application was assigned alphanumeric code SQ5S, and the application was initially reviewed by evaluators identified as IC, 2C, and 3C. The plaintiffs application initially received a score of 72.73 from IC, a score of 77.73 from 2C, and a score of 73.73 from 3C. However, the LDE determined that during the scoring process, the Veteran Initiative and/or Hudson Initiative points awarded to the plaintiffs application had been miscalculated and that its scores from the three evaluators had to be increased from the 1.73 points it received for that criteria to the 2.08 points it should have received for that criteria. After adjusting the scores by increasing each score by .35 (2.08-1.73= 35), the plaintiff received a score of 73.08 from 1C, and 78.08 from 2C. However, with regard to 3C, the LDE noted a problem with the scoring rubric that had been completed because it did not include written comments on the scoring rubric to substantiate the score given for several of the criteria listed on the rubric. The team lead then sent the scoring rubric back to 3C to fill in the scoring rubric with additional written commentary on strengths and/or weaknesses of the plaintiff s application to support the scores given. However, 3C did not provide any additional written commentary as directed, and instead, increased the score given to the plaintiffs application by 5 points, i.e. from 73.73 to 78.73, and returned the scoring rubric to the team lead.
The Louisiana Initiative for Veteran and Service-Connected Disabled Veteran-Owned Small Entrepreneurships or "the Veteran Initiative" (La. R.S. 39:2171, et seq.) and the Louisiana Initiative for Small Entrepreneurships or "the Hudson Initiative" (La. R.S. 39:2001, et seq.), encourages state interests or agencies to enter into state procurement and public contracts from Louisiana's small entrepreneurships, including those that are veteran and service-connected disabled veteran owned.
Since the plaintiff was not a registered small entrepreneurship under either the Veteran Initiative or Hudson Initiative, but had stated in its application that it would use such small entrepreneurships as subcontractors in performing the contract work, it was awarded Veteran Initiative and/or Hudson Initiative points using a mathematical calculation.
After consultation between the LDE and the team lead, it was determined that the appropriate course of action was to invalidate and discard the score given by 3C to the plaintiff s application. As a result, another independent evaluator, who also reviewed the applications for the LDE and was identified as 3B, was asked to evaluate the plaintiffs application. 3B evaluated the plaintiffs application and gave it a score of 69.08. Therefore, the three scores given to the plaintiffs application were: 73.08 from reviewer IC, 78.08 from reviewer 2C, and 69.08 from reviewer 3B. This resulted in an average score of 73.41, and thus, the plaintiffs application fell short of the required 75 points necessary for funding.
After the LDE notified the plaintiff of the scoring results for its application, the plaintiff, on August 12, 2022, submitted a protest to Chief Procurement Officer Tom Ketterer, the Director of the Office of State Procurement, Louisiana Division of Administration. See La. R.S. 39.T671(A). The plaintiff protested the scoring of its application on two grounds: (1) that the LDE's solicitation for applications was not clear regarding how points were to be awarded to applicants under the Veteran Initiative and/or the Hudson Initiative; and (2) that there were contradictions and inconsistencies in some of the individual component scores and comments in the scoring rubrics completed by the evaluators. Pursuant to La. R.S. 39:1566, Mr. Ketterer delegated the authority to render a decision on the protest to the LDE. See also La. R.S. 39:1671(B).
Louisiana Revised Statutes 39:1671 provides, in pertinent part:
A. Right to protest. Any person who is aggrieved in connection with the solicitation or award of a contract issued by the applicable chief procurement officer shall protest to the chief procurement officer.....Protests with respect to the award of a contract shall be submitted in writing within fourteen days after contract award.
B. Authority to resolve protests. The chief procurement officer or his designee shall have authority, prior to the commencement of an action in court concerning the controversy, to settle and resolve a protest of an aggrieved person concerning the solicitation or award of a contract. This authority shall be exercised in accordance with regulations.
C. Decision.
If the protest is not resolved by mutual agreement, the chief procurement officer or his designee shall, within fourteen days, issue a decision in writing. The decision shall:
(1) State the reasons for the action taken.
(2) Inform the protestant of its right to administrative and judicial review as provided in this Chapter.
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E. Finality of decision. A decision under Subsection C of this Section shall be final and conclusive unless one of the following applies: + 4=
(2) The person adversely affected by the decision has timely appealed administratively to the commissioner in accordance with R.S. 39:1683.
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Louisiana Revised Statutes 39:1566 provides that "[s]ubject to the provisions of... the Louisiana Constitution[] ... the state chief procurement officer may employ and supervise such assistants and other persons as may be necessary and may delegate authority to such designees or to any govern mental body as the state chief procurement officer may deem appropriate within the limitations of state law and the state procurement regulations."
The LDE considered the plaintiffs protest, and on August 22, 2022, issued a decision in accordance with La. R.S. 39:1671(C) to deny the protest. Therein, the LDE determined that the provisions of the RFA regarding the Hudson Initiative and Veteran Initiative points were sufficiently clear so as to have adequately informed the applicants of the manner in which those points would be awarded. In that regard, the LDE also refused to consider additional information that the plaintiff submitted with its protest regarding other subcontractors that the plaintiff would use for the contract work because the plaintiff had not submitted that information to the LDE in its application as required by the LDE's RFA. The LDE also determined that the overall scoring of the plaintiffs application was reasonably supported by the RFA, the plaintiffs application, and the scoring rubrics.
Thereafter, on August 27, 2022, the plaintiff appealed the LDE's decision to the Commissioner pursuant to La. R.S. 39:1683. See also La. R.S. 39:1671(E)(2), On October 24, 2022, the Commissioner issued a decision reversing the LDE's decision on the protest and remanded the matter back to the LDE for a full re-scoring of the plaintiffs application. The Commissioner determined that reviewer 3C had deviated from the scoring process set forth in the RFA, which provided that an evaluator could only revise an application's score based on an oral presentation by the applicant, if an oral presentation was requested by the LDE. The Commissioner also found that the LDE had acted reasonably in addressing that issue by voiding 3C's scoring rubric and having another evaluator, 3B, score the plaintiffs application in place of 3C. However, the Commissioner determined that, because the plaintiffs average score of 73.4 points was close to the minimum required score of 75 points and because of the issue with 3C's scoring rubric, the appropriate remedy was to remand the matter to the LDE for a complete re-scoring of the plaintiff's application by another team of three reviewers.
Louisiana Revised Statutes 39:1683 provides:
A. Scope. This Section applies to an appeal addressed to the commissioner of a decision under R.S. 39:1671(C).
B. Time limitation on filing an appeal. The aggrieved person shall file an appeal within seven days of receipt of a decision under R.S. 39.1671(C).
C. Decision. On any appeal under Subsection A of this Section, the commissioner shall decide within fourteen days whether the solicitation or award was in accordance with the constitution, statutes, regulations, and the terms and conditions of the solicitation. Any prior determinations by the state chief procurement officer or his designee shall not be final or conclusive.
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E. Finality of decision. A decision under Subsection C of this Section shall be final and conclusive unless one of the following applies:
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(2) The person adversely affected by the decision has timely appealed to the court in accordance with R.S. 39:1691 (A).
Thereafter, on November 4, 2022, pursuant to the provisions of La. R.S. 39:1691(A), the plaintiff instituted this proceeding in the Nineteenth Judicial District Court seeking judicial review of the Commissioner's decision to order a full re-scoring of the plaintiffs application. The plaintiff argued that the Commissioner's decision was arbitrary and capricious and that a complete re-scoring of its application was not necessary. Rather, the plaintiff suggested that the scores provided by the original evaluators should have been utilized, but re-calculated only to include the appropriate Hudson Initiative and Veteran Initiative points. In other words, the plaintiff argued that the score of 73.08 from reviewer IC and 78.08 from reviewer 2C should be maintained, and that 3C's original score of 73.73 should have simply been amended to include the additional .35 points it was entitled to for the Hudson Initiative and Veteran Initiative points, thus yielding a score of 74.08 from 3C. Utilizing these scores, the plaintiff maintained that its average score would have been 75.29, thereby entitling it to funding for the program. On the other hand, the LDE maintained that the Commissioner's decision to reverse the LDE's denial of the plaintiffs protest and to remand for a complete re-scoring by a new team of evaluators was not arbitrary and capricious, but instead was a rational exercise of his discretionary authority, and that his decision should be affirmed.
Louisiana Revised Statutes 39:1691 (A) provides that "[t]he Nineteenth Judicial District Court shall have exclusive venue over an action between the state and a bidder, offerer, or contractor, prospective or actual, to determine whether a solicitation or award of a contract is in accordance with the constitution, statutes, regulations, and the terms and conditions of the solicitation....."
A hearing was held on the petition for judicial review on February 27, 2023. At the hearing, and although not contained in the record, it was revealed that pursuant to the Commissioner's order, the LDE submitted the plaintiffs application for a complete re-scoring, and the plaintiffs three new scores again fell below the 75-point threshold. At the conclusion of the hearing, the district court found that the Commissioner's decision was not arbitrary and capricious and further, that it was reasonable decision to order a re-scoring. However, the district court "want[ed] it to be done all over again" after the date of the hearing.
In accordance with the district court's oral ruling, on June 28,2023, the district court signed a judgment denying the plaintiff s petition for judicial review, ruling that the administrative decision rendered by the Commissioner on October 24, 2022 was neither in violation of any statutory or constitutional provision, nor affected by any other error of law, was not arbitrary and capricious, and was supportable and sustainable by a preponderance of the evidence in the record. However, the district court set aside and declared null and void the re-score of the plaintiffs proposal, which was conducted pursuant to and in accordance with the Commissioner's October 24, 2022 administrative decision, and it ordered the plaintiffs proposal be anonymously re-scored a second time, by a third group of evaluators who did not participate in the original scoring or the first re-score of the plaintiffs proposal.
The LDE has appealed the June 28, 2023 judgment of the district court. See La. R.S. 39:1691(E) On appeal, the LDE contends that the district court erred in rendering judgment nullifying the results of the first re-score and ordering a second re-score because it was beyond the scope of the plaintiffs petition for judicial review and the administrative record.
Louisiana Revised Statutes 39:1691(E) provides that "[a]ny party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review thereof, as the case may be, to the Court of Appeal, First Circuit or the Supreme Court of Louisiana, as otherwise permitted in civil cases by law and the constitution."
On appeal, the LDE also argues that the district court erred in permitting the plaintiff to challenge the results of the re-score as part of its appeal to the district court without first following the procedures set forth in La. R.S. 39:1671 and 1683, i.e. protesting those results to the Office of State Procurement's chief procurement officer and then to the Commissioner. From our review of the record, it does not appear that the district court allowed the plaintiff to challenge the results of the re-score as part of its appeal to the district court, but rather, it was the district court that, on its own, set aside the results of the re-score. Nevertheless, because we find reversal of the district court's judgment with regard to setting aside the result of the re-score and ordering a second rescore warranted on other grounds, as detailed herein below, we need not address the issue of whether the procedures set forth in La. R.S. 39:1671 and 1683 should have been followed.
DISCUSSION
Judicial review of final decisions in agency adjudications, including those such as this arising under the Louisiana Procurement Code (La. R.S. 39:1551-1755), is governed by the Louisiana Administrative Procedure Act. ASG Technologies Group, Inc. v. Office of Technology Services, 2021-1046 (La.App. 1st Cir. 6/30/22), 344 So.3d 136, 148-149. More specifically, Louisiana Revised Statutes 49:978.1 provides, in pertinent part:
Louisiana Revised Statutes 49:978.1 was re-designated from La. R.S. 49:964 by 2022 La. Acts, No. 663, §1.
A. (1) ... [A] person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter
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B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after the transmittal of notice of the final decision by the agency
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E. If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
F. The review shall be conducted by the court without a jury and shall be confined to the record.....The court, upon request, shall hear oral argument and receive written briefs.
G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court.....
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An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. La. R.S. 49:979.Appellate review of the district court's judgment is de novo, without regard for the factual findings or the legal conclusions of the district court. ASG Technologies Group, Inc., 344 So.3d at 150. An appellate court sitting in review of an administrative agency reviews the findings and decision of the administrative agency, not the decision of the district court. Id.
Louisiana Revised Statutes 49:979 was re-designated from La. R.S. 49:965 by 2022 La. Acts, No. 663, §1.
As previously set forth, the Commissioner determined that 3C deviated from the scoring process and that the LDE acted reasonably in addressing that issue by voiding 3C's scoring rubric and having it scored by 3B. Nonetheless, the Commissioner determined that because of the scoring irregularities and the fact that the plaintiff was close to the minimum score, the appropriate remedy was to order a re-score. The plaintiff challenged this decision by the Commissioner, arguing that it was unnecessary and that its original three scores should be counted as it scores. The plaintiff did not challenge the results of the re-score, and in fact, there was no evidence in the administrative record concerning the re-score of the plaintiffs application or the results thereof.
The district court's judgment specifically found, and on our de novo review we agree, that the Commissioner's decision was not in violation of any statutory or constitutional provision, was not affected by any other error of law, was not arbitrary and capricious, and was supportable and sustainable by a preponderance of the evidence in the record. Having reached these conclusions, there are no grounds upon which the Commissioner's decision can be reversed or modified; consequently, the decision of the Commissioner must be affirmed. See La. R.S. 49:978.1(G); see also ASG Technologies Group, Inc., 344 So.3d at 149 (providing that "[La. R.S.] 49:964(G) [(now La. R.S. 49:978. l. (G)] sets forth the exclusive grounds upon which an administrative agency's decision may be reversed or modified on appeal"). Therefore, we affirm that portion of the judgment of the district court denying the plaintiffs petition for judicial review.
However, the district court's judgment also set aside and declared null and void the re-score of the plaintiffs application, as ordered by the Commissioner. This portion of the district court's judgment was a modification of the Commissioner's decision, and because, as detailed above, no grounds existed for the modification of the Commissioner's decision, we must conclude that the district court's judgment in this regard was without any legal basis and erroneous. It was also beyond the scope of the plaintiffs petition for judicial review because the results of the re-score were neither challenged nor at issue in the plaintiffs petition for judicial review, and it was beyond the scope of the administrative record because the administrative record contains no evidence, documentation or other information concerning the re-score or the results thereof. Consequently, we find this portion of the district court's judgment must be reversed.
Lastly, in furtherance of the district court's decision to set aside and declare null the re-score of the plaintiffs application ordered by the Commissioner, the district court ordered that the plaintiffs proposal be anonymously re-scored a second time. Since the district court's decision to set aside and declare null the re-score of the plaintiffs application has been reversed, the district court was without authority to order a second re-score of the plaintiffs application. Therefore, this portion of the judgment must be vacated.
CONCLUSION
For all of the above and foregoing reasons, the June 28, 2023 district court judgment is affirmed insofar as it denied the plaintiffs petition for judicial review, reversed insofar as it set aside the re-score of the plaintiffs application in accordance with the Commissioner's October 24, 2022 decision, and vacated insofar as it ordered a second re-score of the plaintiffs application.
All costs of this appeal are assessed to the plaintiff/appellee, 29:11 Academy. AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART.
JUDGMENT RENDERED: