Opinion
NUMBER 2015 CA 1323
04-15-2016
BLOCK CONSTRUCTION, LLC v. RECREATION & PARK COMMISSION FOR THE PARISH OF EAST BATON ROUGE
Scott E. Frazier Jacob B. Huddleston Baton Rouge, LA Counsel for Plaintiff/Appellee Block Construction, LLC and Christopher L. Whittington Baton Rouge, LA Jacob E. Roussel Murphy J. Foster, III Steven B. Loeb Baton Rouge, LA Counsel for Defendant/Appellant Recreation & Park Commission for the Parish of East Baton Rouge
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Suit Number C636932 Honorable Wilson E. Fields, Presiding Scott E. Frazier
Jacob B. Huddleston
Baton Rouge, LA Counsel for Plaintiff/Appellee
Block Construction, LLC and Christopher L. Whittington
Baton Rouge, LA Jacob E. Roussel
Murphy J. Foster, III
Steven B. Loeb
Baton Rouge, LA Counsel for Defendant/Appellant
Recreation & Park Commission for
the Parish of East Baton Rouge BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
Defendant/Appellant, Recreation and Park Commission for the Parish of East Baton Rouge ("BREC"), appeals from a judgment of the trial court ordering that a writ of mandamus issue to BREC directing the award of the contract for that certain public works project designated as Wards Creek Multi-Use Pathway Bridge Project, Bid #1603 to plaintiff/appellee, Block Construction, LLC (Block). For the reasons that follow, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
In December of 2014, BREC received bids for a construction project identified as "Wards Creek Multi-Use Pathway Bridge Project," which was to be part of the Wards Creek Trail—a part of BREC's Capital Area Pathways pedestrian walkway project. At the bid opening on December 12, 2014, Block was the sole bidder, with a bid of $1,090,000.
By letter dated December 23, 2014, BREC notified Block that pursuant to La. R.S. 38:2214, all bids for the project were rejected due to the project bidding significantly over budget. Thereafter, on January 20, 2015, Block, through counsel, requested that BREC retract its rejection and award the contract to Block. BREC responded on January 21, 2015, by providing official notice that the sealed bid had been cancelled in its entirety due to budget constraints. However, BREC stated that all vendors would have the opportunity to bid at a later date with revised specifications.
Thereafter, on February 6, 2015, Block filed a petition for declaratory judgment and injunctive relief and, alternatively, for a writ of mandamus. Block asserted that La. R.S. 38:2214(B) provides that a public entity may reject any and all bids for just cause and further defines just cause as "[t]he failure of any bidder to submit a bid within an established threshold of the preconstruction estimates for that public work, as part of the bid specifications." According to Block, the specifications for the project contained no established threshold for bids and BREC had not provided any preconstruction estimates that included the costs of construction. Accordingly, Block asserted that BREC lacked any just cause to reject its bid and sought to enjoin BREC from re-letting the contract for the project; sought a permanent injunction mandating that the contract for the project be awarded to Block; sought a judgment declaring that Block's bid was responsive and that BREC's rejection of Block's bid was without just cause, entitling Block to award of the contract in accordance with the Louisiana Public Bid Law; and requested that a writ of mandamus issue directing the superintendent of BREC to award the contract for the project to Block.
Following a bench trial on the merits, and after considering the testimony, evidence, and post-trial memoranda submitted by the parties, and for reasons orally assigned, the trial court rendered judgment in favor of Block, finding that BREC lacked just cause for rejecting Block's bid under the Louisiana Public Bid Law, La. R.S. 38:2211, et seq., and ordering that a writ of mandamus issue to BREC, directing the award of the contract for the public work project designated as Wards Creek Multi-Use Pathway Bridge Project, Bid #1603 to Block.
BREC now appeals from the trial court's judgment.
DISCUSSION
Louisiana's Public Bid Law, set forth in La. R.S. 38:2211, et seq., is a prohibitory law founded on public policy. Broadmoor L.L.C v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211, 04-0212, p. 6 (La. 3/18/04), 867 So. 2d 651, 656. Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions. The statute was enacted in the interest of the taxpaying citizens for the purpose of protecting them against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices. Broadmoor, 04-0211 at p. 6, 867 So. 2d at 656. A political entity has no authority to take any action that is inconsistent with the Public Bid Law. Broadmoor, 04-0211 at p. 6, 867 So. 2d at 656.
The Public Bid Law requires that all public work done by a public body be advertised for competitive bids and be awarded to the lowest responsible bidder who bid according to the contract, plans, and specifications as advertised. See La. R.S. 38:2211-26; see also Great Lakes Dredge & Dock Co. v. State, ex rel Coastal Protection and Restoration Authority, 14-0249, p. 6 (La. App. 1st Cir. 11/7/14), 167 So. 3d 682, 686 and Pittman Construction Company, Inc. v. Parish of East Baton Rouge, 493 So. 2d 178, 190-191 (La. App. 1st Cir.), writ denied, 493 So. 2d 1206 (La. 1986). The authority of a public entity to reject bids is generally found in La. R.S. 38:2214(B), which provides:
The public entity may reject any and all bids for just cause. Just cause for the purpose of the construction of public works is defined, but is not limited to the following circumstances:
(1) The public entity's unavailability of funds sufficient for the construction of the proposed public work.
(2) The failure of any bidder to submit a bid within an established threshold of the preconstruction estimates for that public work, as part of the bid specifications.
(3) A substantial change by the public entity prior to the award in the scope or design of the proposed public work.
(4) A determination by the public entity not to build the proposed public work within twelve months of the date for the public opening and reading of bids.
(5) The disqualification by the public entity of all bidders.
While defining certain situations that may constitute just cause, La. R.S. 38:2214(B) specifically provides that these situations are illustrative and are not the only circumstances that may constitute just cause for a public entity to reject any and all bids. See Great Lakes Dredge & Dock Co., 14-0249 at p. 6, 167 So. 3d at 686; see also New Orleans Rosenbush Claims Service. Inc. v. City of New Orleans, 94-2223, p. 6 (La. 4/10/95), 653 So. 2d 538, 542 and C.R. Kirby Contractors, Inc. v. City of Baton Rouge, 612 So. 2d 132, 134 (La. App. 1st Cir. 1992). As such, a public entity may have just cause to reject a bid for a basis other than one listed in La. R.S. 38:2214(B), but such basis must be just and reasonable. See New Orleans Rosenbush Claims Service, Inc., 94-2223 at pp. 12-13, 653 So. 2d at 545.
"Just cause" is the determination to be made by the public entity when considering the rejection of any or all bids. Pittman Construction Company, Inc., 493 So. 2d at 191. This court has previously determined that a public entity should be afforded discretion in determining whether it has just cause to reject any and all bids. See Great Lakes Dredge & Dock Co., 14-0249 at p. 6, 167 So. 3d at 686. However, the public entity's discretion must be exercised in a fair and legal manner and not arbitrarily; mandamus can be allowed to correct an arbitrary and capricious abuse of discretion by a public entity. See Great Lakes Dredge & Dock Co., 14-0249 at p. 6, 167 So. 3d at 686.
Regardless of the basis for which a public entity asserts authorization to reject any and all bids, the public entity has a duty to inform a bidder of the reason for rejection of the bid. Milton J. Womack, Inc. v. Legislative Budgetary Control Council, 470 So. 2d 460, 464 (La. App. 1st Cir. 1985); see also New Orleans Rosenbush Claims Service, Inc., 94-2223 at p. 12, 653 So. 2d at 545; C.R. Kirby Contractors, Inc., 612 So. 2d at 135. Requiring a public entity to articulate reasons for rejecting any and all bids promotes the purposes of the legislature in enacting La. R.S. 38:2214—insuring that tax dollars for public works are spent wisely, that the lowest responsible bidder is awarded the contract, and that favoritism does not factor into the decision making process. C.R. Kirby Contractors, Inc., 612 So. 2d at 134-135.
If a public entity does not have just cause to reject the low bidder nor just cause to reject all bids, awarding the contract to the lowest responsible bidder, by right of the statute which is not subject to waiver, becomes a ministerial duty subject to mandatory injunction and/or mandamus. Pittman Construction Company, Inc., 493 So. 2d at 191.
BREC raises for the first time on appeal that Block failed to state a cause of action against BREC in mandamus because a writ of mandamus must be directed "to a public officer" to compel the performance of a ministerial duty. See La. C.C.P. art. 3863. In the instant case, Block named BREC as the defendant in its action seeking a permanent injunction, declaratory judgment, and writ of mandamus. However, Block failed to name a public officer for BREC as a party defendant. Accordingly, because Block failed to direct its petition for mandamus to a "public officer," it failed to state a cause of action in mandamus. See La. C.C.P. art. 3863; Wilkinson v. LaFranz, 574 So. 2d 403, 405 (La. App. 4th Cir. 1991). Therefore, we reverse the trial court's judgment ordering that mandamus issue to BREC directing the award of the contract for the public work project designated as Wards Creek Multi-Use Pathway Bridge Project, Bid #1603 to Block, and remand this matter to the trial court for amendment of the pleadings to add a public officer as a party defendant or, alternatively, for consideration of Block's remaining causes of action. See La. C.C.P. arts. 927(B) and 934.
On appeal, BREC requests attorney fees pursuant to La. R.S. 38:2220.4(B)(1). However, because we do not reach the merits of Block's action, we find any consideration of an award of attorney's fees would be premature. --------
CONCLUSION
For the foregoing reasons, we reverse the trial court's judgment and remand this matter to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to Block Construction, LLC.
REVERSED AND REMANDED WITH INSTRUCTIONS. HOLDRIDGE, J., Concurring.
The trial court erred in granting plaintiff's writ of mandamus, which was pled in the alternative, before conducting a trial on the declaratory and injunctive relief sought.