A.M.E. Disaster Recovery Services, Inc. v. St. John the Baptist Parish School Board

54 So. 3d 719, 10 La.App. 5 Cir. 500, 2010 La. App. LEXIS 1625, 2010 WL 4823835
CourtLouisiana Court of Appeal
DecidedNovember 23, 2010
DocketNo. 10-CA-500
StatusPublished
Cited by4 cases

This text of 54 So. 3d 719 (A.M.E. Disaster Recovery Services, Inc. v. St. John the Baptist Parish School Board) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.M.E. Disaster Recovery Services, Inc. v. St. John the Baptist Parish School Board, 54 So. 3d 719, 10 La.App. 5 Cir. 500, 2010 La. App. LEXIS 1625, 2010 WL 4823835 (La. Ct. App. 2010).

Opinion

WALTER J. ROTHSCHILD, Judge.

12This appeal involves the application of the Public Bid Law, La. R.S. 38:2212, et seq. For the reasons stated herein, we affirm the judgment of the trial court.

On March 9, 2010, A.M.E. Disaster Recovery Services, Inc. (“A.M.E”) brought this Petition for Temporary Restraining Order, Preliminary Injunction, Mandamus, and Permanent Injunction, or in the Alternative for Damages against the St. John the Baptist School Board and its president at the time, Gerald J. Keller. A.M.E alleged that in December of 2009, the School Board advertised for the receipt of bids for a public works project and that A.M.E submitted the lowest responsive bid on January 14, 2010. Although the School Board initially voted to award the contract to A.M.E on January 21, 2010, the School Board subsequently voted in a special meeting to vacate the award. The School Board then ^requested a disqualification hearing which was scheduled for March 10, 2010, and pending this hearing, the School Board refused to execute a contract for the project with A.M.E.

Plaintiff alleges that this action was -in direct violation of the Public Bid Law, and constituted irreparable injury to A.M.E as the successful bidder on the project. A.M.E sought a temporary restraining order to prevent the holding of the disqualification hearing. A.M.E also sought further [721]*721injunctive relief to prevent the School Board from talking any action other than execution of the contract for the project with A.M.E. In the alternative, A.M.E sought a judgment of nullity of any contract for the project to any contractor other than A.M.E, and also for damages due to the School Board’s breach of its duty to execute the contract with A.M.E.

The trial court denied the request for the temporary injunction, and the hearing was held on March 10, 2010 as scheduled. Plaintiff subsequently filed a supplemental and amending petition seeking to restrain the School Board from awarding this contract to a bidder other than A.M.E. The trial court denied the request for a restraining order, but set a hearing on plaintiffs request for preliminary injunction and for a writ of mandamus to defendants to accept A.M.E’s bid and execute the contract with A.M.E or to show cause to the contrary at the hearing on the preliminary injunction.

Following a hearing on March Bl, 2010, the trial court denied plaintiffs request for a preliminary injunction and a writ of mandamus. Written judgment was signed on April 1, 2010. Plaintiff now devolutively appeals from this judgment on the basis of several assignments of error.

A.M.E contends by this appeal that the trial court erred in denying injunctive relief as the School Board had no authority to disqualify their bid Rafter it had been awarded. A.M.E further argues that the School Board disqualified their bid for reasons not stated in the notice for the due process hearing and failed to comply with the requirements of Louisiana Public Bid Law.

A.M.E argues that following the acceptance of A.M.E’s bid on January 21, 2010, the School Board had a ministerial duty to enter into a written contract with A.M.E. In support of its argument, A.M.E relies on the provisions of La. R.S. 38:2216(A)(1), which state as follows:

When any bid is accepted for the construction or doing on any public works, a written contract shall be entered into by the successful bidder and the public entity letting the contract, and the party to whom the contract is awarded shall furnish good and solvent bond in the amount of less than one-half of the amount of the contract, for the faithful performance of his duties.

A.M.E argues that because the project was awarded, it could not be vacated and A.M.E could not be disqualified.

However, a review of the minutes for the School Board’s January 21, 2010 meeting reveals that a motion was carried “.. to award the base contract with no alternates to the apparent low bidder for the Gary-ville/Mt. Airy Renovation Project [A.M.E Disaster Recovery] contingent upon low bidder meeting all LA Public Bid Law and Contract Document Requirements and Specifications.” Although A.M.E. was recognized by the School Board as the apparent low bidder, the contract award to A.M.E. was contingent upon meeting the requirements of the Louisiana Public Bid Law.

The Advertisement for Bids contained in the record states that bidders must meet the requirements of the State of Louisiana Contractor’s Licensing Law, La. R.S. 37:2151, et seq. The Instructions to Bidders requires the ^bidder for this project to be “fully qualified under all Louisiana State Laws, and all local licensing laws for Contractors in effect at the time and at the location(s) of the Work before submitting his Bid ...”

Pursuant to La. R.S. 37:2160, it shall be unlawful for any person to engage or to continue in this state in the business of [722]*722contracting, or to act as a contractor, unless he holds an active license as a contractor. Further, La. R.S. 37:2158(E) provides that a contractor’s license may be revoked or suspended under law for failure to maintain a qualifying party to represent the licensee.

There is no dispute that at the time the bid was submitted by A.M.E. to the School Board in January of 2010, the qualifying party for the entity was listed as Burnell Moliere.1 Although A.M.E. attempted to substitute the qualifying party in early January of 2010, Mr. Moliere’s voluntary withdrawal as the qualifying party did not become effective until February 18, 2010 and a substitution was not approved by the Louisiana State Contractor Licensing Board until March of 2010.

At the special meeting of the School Board on March 2, 2010, the Board noted Mr. Moliere’s removal as the qualifying party for A.M.E., and therefore voted to vacate the award to A.M.E on the basis A.M.E.’s contracting license was subject to revocation or suspension. Thereafter, a Due Process hearing was scheduled by the District Attorney to present information to A.M.E. as to the basis for the disqualification. At this hearing which was held on March 10, 2010, A.M.E. argued that at the time the bid was submitted, their license was intact and that Mr. Moliere was no longer a principal in the corporation. A.M.E. admitted however that Mr. Moliere | ^remained as an employee and sales representative for the company, earning the same salary as when he was a principal.

At its meeting on March 18, 2010, the School Board voted to disqualify A.M.E. and awarded the project to the next lowest bidder. Our task is to determine whether the School Board was within its authority in disqualifying this bidder.

La. R.S. 38:2212, which requires that advertising and the obtaining of competitive bids, is a prohibitory law founded on public policy. It was enacted in the interest of taxpaying citizens of this state, and its purpose is to protect these citizens against contracts awarded through favoritism, possibly involving exorbitant and extortionate prices. Haughton Elevator Division v. State, Through Division of Administration., 367 So.2d 1161 (La.1979); J.W. Rombach v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305, 1308-1309.

A public agency awarding a public works contract is vested with the power and discretion to determine the responsibility of the bidder and to reject all bids if none are satisfactory. However, the law does not allow the agency to arbitrarily select one bid, which is higher, and reject other bids, which are lower.

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Bluebook (online)
54 So. 3d 719, 10 La.App. 5 Cir. 500, 2010 La. App. LEXIS 1625, 2010 WL 4823835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ame-disaster-recovery-services-inc-v-st-john-the-baptist-parish-lactapp-2010.