Abl Mgmt. v. Board of Sup'rs of S. Univ.

773 So. 2d 131, 2000 WL 1755120
CourtSupreme Court of Louisiana
DecidedNovember 28, 2000
Docket00-C-0798
StatusPublished
Cited by60 cases

This text of 773 So. 2d 131 (Abl Mgmt. v. Board of Sup'rs of S. Univ.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abl Mgmt. v. Board of Sup'rs of S. Univ., 773 So. 2d 131, 2000 WL 1755120 (La. 2000).

Opinion

773 So.2d 131 (2000)

ABL MANAGEMENT, INC. and D'Wiley's Services, Inc.
v.
BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY and Agricultural and Mechanical College.

No. 00-C-0798.

Supreme Court of Louisiana.

November 28, 2000.

*132 Linda Jane, Law Clerk, Winston Gerard DeCuir, Decuir & Clark, East Baton Rouge, Richard P. Ieyoub, Atty. Gen., for Applicant.

Jude Christopher Bursavich, Steven Bernard Loeb, David Carlyle Voss, Breazeale, Sachase & Wilson, Baton Rouge, for Respondent.

Nancy C. Dougherty, James Hrdlicka, III, Harry Joseph Philips, Jr., East Baton Rouge, for amicus curiae Board of Regents.

KNOLL, J.

The narrow legal issue before us is whether the Division of Administrative Law (DAL) has subject matter jurisdiction to review a protest of a request for proposal ("RFP") for a contract to lease a public university building for dining services issued under the authority of LA.REV.STAT. ANN. § 17:3361, the "Leases of College and University Properties" law.[1] The resolution of this procedural question implicates the method that a university may employ when it seeks to lease any portion of its grounds or campuses. If we rule that aspects of such a lease involve a procurement under LA.REV.STAT. ANN. § 39:1551-1755, the stringent requirements for the selection of the lowest bidder will be involved. If, on the other hand, LA.REV.STAT. ANN. § 17:3361 alone is applicable, a competitive bid process will be involved, but the lowest bidder provisions will not be applicable. For reasons which follow, we find that the university's use of the special lease provisions authorized by *133 the Legislature in LA.REV.STAT. ANN. § 17:3361 does not involve a procurement and, thus, does not vest the DAL with subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY

On October 6, 1997, Southern University in Baton Rouge ("Southern"), a public university under the management and control of the Board of Supervisors for Southern University and Agricultural Mechanical College,[2] solicited RFPs for the lease of space for the operation of dining services at its Baton Rouge campus under a statutory provision which authorizes university boards to execute leases "which will further the educational, scientific, research, or public service functions of the [university] board." LA.REV.STAT. ANN. § 17:3361. The proposed lease was for a primary term of five years with five one-year renewal options. The advertisement, inter alia, required the successful proposer to: provide capital investment for improvement of the dining facilities and the Student Union Food Court; to contract with other private entities, such as McDonalds, to provide food court outlets; to invest capital funds of $1,000,000 in the university over the term of the lease; to maintain all of the food service facilities; to pay all costs of the food staff, together with food and equipment purchases; to offer meal plans to all Southern students; and to provide a la carte meals to students, staff and guests of the university.[3] The proposed lease also required a guarantee of an annual minimum lease payment of $650,000 to Southern. In the RFP, Southern agreed that it would collect meal plan fees from the students during registration and that it would remit these funds to the lessee/food service provider.

After receiving proposals from various interested parties, Southern awarded the lease to ARAMARK, a private corporate entity.[4] Thereafter, on October 29, 1997, ABL Management, Inc. & D'Wiley's Services, Inc. ("ABL"), a private joint venture, filed a protest of the RFP because its proposal, apparently the lowest, was rejected. Southern denied ABL's protest. ABL then requested review of Southern's denial of its protest before the DAL. Southern then filed a motion to dismiss ABL's protest, on May 28, 1998, on the ground that the DAL lacked subject matter jurisdiction to hear a matter that dealt with an RFP issued pursuant to LA.REV. STAT. ANN. § 17:3361. The administrative law judge agreed with Southern's argument and granted its motion to dismiss. In reaching its conclusion, the administrative law judge held that although LA.REV. STAT. ANN. § 49:992(E) mandated that the Procurement Code adjudications commence in the DAL, no legislation authorized an administrative hearing in the DAL for activities provided in LA.REV.STAT. ANN. § 17:3361.[5] ABL then sought review *134 in the district court of the administrative law judge's decision, urging that Southern's request for RFPs for supplying food services at its Baton Rouge campus was a procurement which had to proceed with advertisement and selection pursuant to the Procurement Code, LA.REV.STAT. ANN. § 39:1551. As such, it contended that the DAL had subject matter jurisdiction over its protest.

On July 21, 1998, the district court affirmed the decision that the DAL was without jurisdiction to hear a matter that dealt with a RFP issued pursuant to LA. REV.STAT. ANN. § 17:3361. It further found that Southern was simply acting as an agent for the food service contractor when the university collected for the meals at registration that the lessee would later provide. Concurrent with that ruling, the district court also denied ABL's motion to remand the matter to the administrative law judge.

Subsequently, ABL timely filed a devolutive appeal. The Court of Appeal, First Circuit, reversed the judgment of the district court and remanded the matter to the DAL. ABL Mgmt., Inc. & D'Wiley's Servs., Inc. v. Board of Supervisors of Southern University, 98-2711, p. 9 (La. App. 1 Cir. 2/18/00), 752 So.2d 384, 385. Although the appellate court recognized that Southern had the right to enter into a lease pursuant to LA.REV.STAT. ANN. § 17:336., it further held that those portions of the contract which contained "services," i.e., the purchase and distribution of food, constituted procurements subject to the Louisiana Procurement Code, LA.REV. STAT. ANN. §§ 39:1551-1755. ABL Mgmt., Inc., 98-2711, p. 7, 752 So.2d at 388. Accordingly, it held that administrative review as provided in the Procurement Code was proper for the procurement of food services. Thus, the DAL had subject matter jurisdiction to review the merits of ABL's protest.

We granted Southern's writ application to consider the correctness of the appellate court's decision. ABL Mgmt., Inc. & D'Wiley's Servs., Inc. v. Board of Supervisors of Southern University, 00-C-0798 (La.5/12/00), 761 So.2d 556.

ANALYSIS

The crux of ABL's protest is that Southern's RFPs for the acquisition of food services was a procurement subject to the provisions of the Procurement Code; thus, subject matter jurisdiction was proper in the DAL because it had a right to protest Southern's award of this lease through the administrative review provisions of LA.REV.STAT. ANN. §§ 39:1673 (preliminary informal review with the chief procurement officer), 1681 (review authority of the commissioner of administration), 1685(E)(2), 1691(C) and 1692(C) (aggrieved party's right to judicial review of the decision of the commissioner of administration). Southern's position is that the lease did not constitute a procurement and that its award of this lease was made pursuant to LA.REV.STAT. ANN. § 17:3361; thus, the lease was not subject to the administrative review provisions of the Procurement Code.

Relying upon Pacificorp Capital, Inc. v. State, Div. of Admin., Office of State Purchasing, 92-1729, p. 3 (La.App. 1 Cir. 8/11/94), 647 So.2d 1122, 1124, writ denied,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

John Vajas v. Kevin Morris
Louisiana Court of Appeal, 2025
Breaux v. Worrell
W.D. Louisiana, 2024
Mark Jones Versus State of Louisiana
Louisiana Court of Appeal, 2022
Seguin v. Remington Arms
Fifth Circuit, 2022
Wood Materials LLC v. City of Harahan
262 So. 3d 1034 (Louisiana Court of Appeal, 2018)
Gardiner Farms, LLC v. Advanced Agric., Inc.
258 So. 3d 769 (Louisiana Court of Appeal, 2017)
Hornbeck Offshore Operators, LLC v. Cross Group, Inc.
207 So. 3d 1141 (Louisiana Court of Appeal, 2016)
Dynamic Constructors, L.L.C. v. Plaquemines Parish Government
173 So. 3d 1239 (Louisiana Court of Appeal, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
773 So. 2d 131, 2000 WL 1755120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abl-mgmt-v-board-of-suprs-of-s-univ-la-2000.