Byron E. Talbot Contractor, Inc. v. Plaquemines Port, Harbor and Terminal District and J. Caldarera & Company, Inc.

• Court: Louisiana Court of Appeal
• Decided: April 21, 2025
• Docket: 2024-CA-0646
• Status: Published

Opinion

BYRON E. TALBOT * NO. 2024-CA-0646 CONTRACTOR, INC. * VERSUS COURT OF APPEAL * PLAQUEMINES PORT, FOURTH CIRCUIT HARBOR AND TERMINAL * DISTRICT AND J. STATE OF LOUISIANA CALDARERA & COMPANY, ******* INC.

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 68-918, DIVISION “B” Honorable Michael D. Clement ****** Judge Daniel L. Dysart ******

(Court composed of Judge Daniel L. Dysart, Judge Nakisha Ervin-Knott, Judge Monique G. Morial)

Murphy J. Foster, III Jacob E. Roussel David C. Fleshman BREAZEALE SACHSE & WILSON, L.L.P. One American Place, 23rd Floor P.O. BOX 3197 Baton Rouge, LA 70821-3197

COUNSEL FOR PLAINTIFF/APPELLEE

Jimmy A. Castex, Jr. John B. Esnard, III W. Lee Kohler Gothard K. Reck CASTEX ESNARD, L.L.C. 650 Poydras Street Suite 2415 New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE Michael R.C. Riess Johanna E. Lambert RIESS LEMIEUX, LLC 1100 Poydras Street, Suite 1100 New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

APRIL 21, 2025 DLD J. Caldarera & Company, Inc. (“JCC”) appeals the trial court judgment of NEK MGM May 23, 2024, granting a motion for permanent injunction filed by Byron E.

Talbot Contractor, Inc. (“BET”). The dispute leading to this request for injunctive

relief involves competing public bids from two companies seeking to serve as

general contractor for a project of the Plaquemines Port, Harbor & Terminal

District (“the Port”) called the “Alliance Water Booster Station and Feed Line

Upgrades – Feed Lines Upgrades, State Project No. H.014966 (322) – Phase II.”

The judgment appealed from restrained, enjoined and prohibited JCC and the Port,

and those acting or claiming to act on their behalf, from taking any action in

furtherance of any award of the contract for this project to any bidder other than

BET, including but not limited to the signing of a contract and/or proceeding with

any work pursuant to a contract for the project. The judgment was designated as

final and appealable, and all costs were assessed against JCC and the Port.

BACKGROUND

Several companies, including JCC and BET, submitted bids to serve as

general contractor on the project. The bidding documents included the three-page

“Louisiana Uniform Public Work Bid Form, Unit Price Form.” Attached to the

1 Public Bid Form was a list of Specifications to be used in the submission of the

bids. Section 01025 of this document1, as modified by a document entitled

Addendum 1, included an item for mobilization costs, which stated as follows:

1.05 Mobilization (Item No. 1)

A. Mobilization shall consist of preparatory work and operations, including but not limited to those necessary for the movement of personnel, equipment, supplies and incidentals to the project site; the establishment of all offices, buildings and other facilities necessary for work on the project; the cost of bonds and any required insurance; and other preconstruction expenses necessary for the start of the work, excluding the cost of construction materials.

B. The price for mobilization shall not exceed 5% of the total project bid price. All work associated with mobilization shall be paid for on a lump sum basis. Partial payments shall be made in accordance with the following schedule:

Percent of Total Contract Amount Allowable Percent of the Lump Earned Sum Price for Temporary Signs & Barricades 1st Partial Estimate 25 10 50 25 75 50 100

The lowest bid was from JCC, appellant herein. JCC’s total bid was

$7,187,867.50. The second lowest bid was from BET, an appellee herein. The

Port is also an appellee. BET’s bid was $7,661.100.00. After initially awarding

the contract to JCC, Kyle Associates, LLC, the engineering company handling the

bidding process, determined that although JCC had submitted the lowest bid, the

bid was non-responsive and was disqualified as a result. The Port found BET’s bid

responsive, and the contract was awarded to that company.

1 The modifications in Addendum 1 changed the terms regarding the payment of mobilization

costs but retained the phrase at issue in this case, which states: “The price for mobilization shall not exceed 5% of the total project bid price.”

2 The reason Kyle Associates, LLC gave for finding JCC’s bid non-responsive

was based on the figure it stated for mobilization costs. While BET listed a lump

sum unit price for mobilization that did not exceed 5% of its total project bid price,

JCC’s lump sum unit price for that item significantly exceeded 5% of its total

project bid price. JCC’s lump sum price for mobilization was $1,500,000.00,

which is 20.86% of its total project bid price of $7,187,867.50.

JCC objected to its bid being found non-responsive, arguing that the 5% cap

for mobilization costs violates the Louisiana Public Bid Law, specifically La. R.S.

38:2212(B)(2), and cannot be considered in the award of the contract under

Leblanc Marine, LLC v. Division of Administration, Office of Facility Planning &

Control, 2019-0053 (La. 10/22/19), 286 So.3d 391 (citing the holding in that case

that bidding instructions which conflict with, rather than merely exceed, the

statutory requirements and procedures set forth in the Public Bid Law are not

valid).

The Port subsequently reversed its decision as to JCC’s bid and determined

that JCC was the lowest responsive and responsible bidder and should be awarded

the contract. BET then filed the instant suit seeking a temporary restraining order,

preliminary and permanent injunction, mandatory injunction and declaratory

judgment against JCC and the Port. In its petition, BET alleged that JCC’s bid

failed to comply with the mobilization specification in that its price exceeded the

5% cap for that item. JCC and the Port opposed BET’s request for injunctive

relief.2

In its opposition to BET’s request for injunctive relief, JCC and the Port

argued that La. R.S. 38:2212(B)(2) lists only 12 items of information and

2 Following the subsequent grant of injunctive relief, the Port has aligned its position with BET.

3 documentation that can be required in bidding documents under the Public Bid

Law and noted that mobilization price limitation is not one of the 12 required

items. JCC and the Port further argued that a public entity’s bid advertisement

cannot impose more restrictive requirements than those set forth in the Public Bid

Law. While the form can require that unit prices be specified, JCC and the Port

argued that rejection of JCC’s bid for non-compliance can only be based on

whether the non-compliance constitutes an irregular bid, which is considered non-

responsive. JCC argued that the 5% specification was invalid, and cannot be used

to reject its bid because it dictates what a contractor can bid on a specific unit price

item.

Following a hearing, the trial court granted BET’s request for a permanent

injunction and enjoined the Port from awarding the contract to any bidder other

than BET. In reasons for judgment, the court considered JCC’s argument that the

Port improperly modified the Uniform Bid Form when it placed a 5% cap on

mobilization costs in violation of La. R.S. 38:2212(B)(2). That statute states, in

part, that “the bidding documents shall require only the following information and

documentation,” and then lists 12 items.

La. R.S. 38:2212(B)(2) states:

Any public entity advertising for public work shall use only the Louisiana Uniform Bid Form as promulgated in accordance with the Administrative Procedure Act by the division of administration, office of facility planning and control. The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond; Acknowledgment of Addenda; Base Bid; Alternates; Signature of Bidder; Name, Title, and Address of Bidder; Name of Firm or Joint Venture; Corporate Resolution or written evidence of the authority of the person signing the bid; 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 including a description for each

4 unit; however, unit prices shall not be utilized for the construction of building projects, unless the unit prices and their extensions are incorporated into the base bid or alternates. If a public entity adds any additional requirements for information, unless mandated by state or federal requirements, the requirements shall be void and not considered in the award of the contract. Any timely change by a bidder to the bid prior to submission of the bid shall be scratched through and initialed by the bidder or the person who submits the bid. The change as initialed shall be binding.

The court also noted the Leblanc Marine case, relied upon by all parties, and

quoted the following from that case:

The case law has recognized that a public entity may “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.” Phylway Const., LLC v. Terrebonne Par, Consol. Gov’t, 2013-1589 (La.App. 1 Cir. 9/5/14), 153 So.3d 516, 521, writ denied, 2014, 2677 (La. 3/13/15), 161 So.3d 642. However, the bidding instructions which conflict with, rather than merely exceed, the statutory requirements and procedures set forth in the Public Bid Law are not valid. See Barriere Constr. Co., LLC v. Parish of Tangipahoa, 2018-0279 (La.App. 1 Cir 9/24/18), 259 So.3d 458, 464.

Leblanc Marine, 2019-0053, p. 7, 286 So.3d at 396.

The court further noted that BET also relied on Section 727.05 of the

Louisiana Department of Transportation and Development’s (“DOTD”) Standard

Specifications, which states:

When the contract does not include a pay item for mobilization, no direct payment will be made for mobilization. When the contract contains a pay item for mobilization, payment will be made at the contract lump sum price, subject to the following provisions:

Partial payments for mobilization will be made in accordance with the schedule of Table 727-1 up to a maximum of 10 percent of the original total contract amount, including this item. Payment of any remaining amount will be made upon completion of all work under the contract.

Based on the above, the court granted BET’s request for injunctive relief

finding “it appears that the Port was not prohibited from imposing a 5% maximum

5 on mobilization costs on its bid form for the project. Because JCC’s bid failed to

comply with this requirement, its bid was non-responsive.”

Prior to trial, the parties stipulated that the requests for preliminary and

permanent injunctions would be heard together, and the resulting judgment would

be final and immediately appealable under La. C.C.P. art. 1915. The standard of

review for the issuance of a permanent injunction is the manifest error standard.

Mary Moe, L.L.C. v. Louisiana Bd. of Ethics, 2003-2220, p. 9 (La. 4/14/04), 875

So. 2d 22, 29 (citing Parish of Jefferson v. Lafreniere Park Foundation, 1998-146

(La.App. 5 Cir. 7/28/98), 716 So.2d 472, 478; Pogo Producing Co. v. United Gas

Pipe Line Co., 511 So.2d 809, 812 (La.App. 4th Cir.1987)).

DISCUSSION

JCC now appeals, asserting five assignments of error.

Before addressing the assignments of error, we note that “[t]he district

court's oral or written reasons for judgment form no part of the judgment, and ...

appellate courts review judgments, not reasons for judgment.” Wooley v.

Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61 So. 3d 507, 572 (quoting Bellard v.

American Cent. Ins. Co., 2007-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671); See

also Greater New Orleans Expressway Comm'n v. Olivier, 2002-2795, p. 3 (La.

11/18/03), 860 So.2d 22, 24 (“Appeals are taken from the judgment, not the written

reasons for judgment.”); La. C.C.P. arts. 1918, 2082 and 2083.

Accordingly, we find any reliance by the trial court on Section 727.05 of the

DOTD’s Standard Specifications to be misplaced. This DOTD specification

addresses the timing of how payments for mobilization costs are to be made, but it

is not relevant to the issue of whether the specification in the bidding documents in

this case limiting the total amount bid for mobilization costs to 5% of the total

6 project price bid is permissible under the Louisiana Public Bid Law, La. R.S.

38:2212, et seq.

In its first assignment of error, JCC argues that the trial court erred in finding

its bid nonresponsive as the 5% mobilization specification is contrary to the

Louisiana Public Bid Law, La. R.S. 38:2212, et seq. JCC cites the Louisiana

Supreme Court case of Durr Heavy Const., LLC v. City of New Orleans, 2016-

0609, p. 3 (La. 4/15/16), 189 So.3d 384, 386, and quotes from a concurring opinion

in that case, which stated that the “Public Bid Law now provides an exclusive list

of the only twelve items of information which a public entity can require bidders to

provide in the ‘bidding documents’ to evaluate the bid’s responsiveness.” JCC

argues that its bid was responsive under La. R.S. 38:2212(B)(2) and cannot be

rejected for noncompliance with the 5% specification. JCC also cites the case of

Boh Bros. Construction, LLC v. Parish of Jefferson, 2020-0472 (La.App. 5 Cir.

6/2/21), 325 So.3d 500, in which a public entity was found to have violated the

Public Bid Law by imposing a header and footer requirement in the bidding

documents and using the failure to do so as a basis for rejecting an otherwise

lowest bidder.

We initially note that in Boh Bros. Construction, supra, the header and

footer required by the public entity were to be included on the Uniform Bid Form.

Here, as acknowledged by JCC in its appeal brief, the Uniform Bid Form is

unmodified on its face. Thus, we find the Boh Bros. Construction case

distinguishable for that reason.

JCC correctly notes that La. R.S. 38:2212(B)(2) sets forth an exclusive list

of twelve items of information and documentation that the public entity can require

bidders to provide in the bidding documents. That same section also states that

7 “[i]f a public entity adds any additional requirements for information, unless

mandated by state or federal requirements, the requirements shall be void and not

considered in the award of the contract.”

However, BET argues that the 5% mobilization specification “is neither a

requirement for ‘information and documentation to be submitted by a bidder’

beyond the 12 items identified in La. R.S. 38:2212(B)(2) nor an impermissible

‘additional requirement for information’ under La. R.S. 38:2212(B)(2).” We

agree. The specification at issue did not constitute an additional requirement for

information. The specification did not ask for the price of any items included in

total mobilization costs.

As the Leblanc Marine court found, a public entity may include

requirements and instructions in bid forms that may exceed what is required by the

Public Bid Law, as long as the statutory requirements are also met. Leblanc

Marine, 2019-0053, p. 7, 286 So.3d at 396. We find the bidding instruction to

limit mobilization costs to no more than 5% of the total project bid price merely

exceeded, but did not conflict with, the statutory requirements and procedures set

forth in the Louisiana Public Bid Law, La. R.S. 38:2212, et seq. This assignment

of error is without merit.

In its second assignment of error, JCC argues that the 5% mobilization

specification is an impermissible modification of the Uniform Bid Form, and

therefore the trial court erred in finding JCC’s bid was nonresponsive based on

JCC’s noncompliance with that specification. As stated above, JCC acknowledges

that the Uniform Bid Form appears unmodified on its face. However, JCC argues

that the Port’s inclusion of the 5% specification places a qualification on what can

be included on the Form as the unit price for mobilization.

8 Citing La. R.S. 38:2212(B)(2), JCC notes that a public entity is required to

use the Uniform Bid Form as promulgated, 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 including a description for each unit.” JCC argues that under

La. R.S. 38:2212(B)(2), the public entity cannot mandate the price of a unit item.

Rather, the bidder supplies the unit price. JCC contends that the 5% specification

essentially adds a line qualifying and modifying the Uniform Bid Form in violation

of the law and should not have been considered by the trial court.

We find no merit in JCC’s argument that the Port’s specification that the

total costs for mobilization not exceed 5% of the total project bid price constituted

an impermissible price specification. As stated above, this specification did not

ask for the price of any of the enumerated items included in the description of

mobilization costs in the document attached to the Public Bid Form. The inclusion

of this specification was not an impermissible modification of the Uniform Bid

Form. This assignment of error is without merit.

In its third assignment of error, JCC argues that the 5% mobilization

specification inhibits free and unrestricted competition among bidders in violation

of the Public Bid Law. JCC argues that the 5% specification is a prohibited

prequalification, is anti-competitive price fixing by the public entity and fosters

fraud and does not eliminate undue or excessive costs as required by the Public Bid

Law. JCC cites Louisiana Associated General Contractors, Inc. v. Calcasieu

Parish School Board, 586 So.2d 1354 (La. 1991), which dealt with the question of

whether a parish school board could mandate a prevailing wage in its Public Bid

contracts. The Louisiana Supreme Court concluded that the school board could not

9 include such a provision in their bidding process because it constituted an

impermissible “prequalification” of bidders. Id. at 1363.

We first note that La. R.S. 38:2212 has been amended numerous times since

the 1991 Calcasieu Parish School Board case. Several of those amendments

included language relevant to the issues in the case before us. These amendments

included, among other changes, the addition in 2008 of the exclusive twelve-item

list of information and documentation, See Acts 2008, No. 727, §1; the

requirement in a 2014 amendment that public entities advertising for public work

use only the Louisiana Uniform Bid Form, See Acts 2014, No. 759, §1; and the

addition in a 2022 amendment of the line “[i]f a public entity adds any additional

requirements for information, unless mandated by state or federal requirements, the

requirements shall be void and not considered in the award of the contract.” See

Acts 2022, No. 774, §1.

Furthermore, we find that the requirement in the Calcasieu Parish School

Board case that all bidders pay prevailing wage rates is distinguishable from the

specification at issue in this case. Here, the specification at issue does not mandate

a particular price on any item included in mobilization costs, but merely adds the

requirement that total costs for mobilization expenses cannot exceed 5% of the

total project bid price. We find no merit in JCC’s argument that the 5%

specification is a prohibited prequalification and/or that it inhibits free and

unrestricted competition among bidders in violation of the Public Bid Law.

In its fourth assignment of error, JCC argues that the trial court erred in

considering the 5% mobilization specification as the reason to find JCC’s bid

nonresponsive as it conflicts with La. R.S. 38:2212(B)(2) and is invalid on its face.

JCC cites the section of that statute, which states: “[i]f a public entity adds any

10 additional requirements for information, unless mandated by state or federal

requirements, the requirements shall be void and not considered in the award of the

contract.”

As stated above, we find the specification that mobilization costs not exceed

5% of the total project bid price was not an additional requirement for information.

Rather, this bidding instruction merely exceeded, but did not conflict with, the

statutory requirements and procedures set forth in the Louisiana Public Bid Law, as

allowed under the holding of Leblanc Marine. Based on our conclusion that the

5% specification regarding total mobilization costs does not conflict with the

requirements of La. R.S. 38:2212, et seq., we find no merit in this assignment of

error.

Finally, JCC argues that the trial court erred in substituting its judgment for

the Port’s good faith interpretation of its bidding documents. It argues that the

Port’s initial decision to award the contract to JCC was in accordance with the law,

and it correctly awarded the project to JCC as the lowest responsive and

responsible bidder.

We find that the Port’s initial decision to award the contract to JCC was in

error because it disregarded the specification that the amount stated for total

mobilization costs not exceed 5% of the total project bid price. La. R.S.

38:2212(B)(1) states: “The provisions and requirements of this Section and those

stated in the bidding documents shall not be waived by any entity.” Based on our

finding that the bidding instruction to limit mobilization costs to 5% of the total

project bid merely exceeded, but did not conflict with, the statutory requirements

and procedures set forth in the Louisiana Public Bid Law, La. R.S. 38:2212, et

seq., the Port was not entitled to waive this specification and erred in doing so in

11 its initial award of the contract to JCC. We find no merit in this assignment of

CONCLUSION

Accordingly, we find no error in the trial court judgment granting the

permanent injunction in favor of BET. The specification in the bidding

instructions that limited the total amount bid for mobilization costs to 5% of the

total project bid price was allowable under Leblanc Marine, 2019-0053, 286

So.3d 391, and did not violate the Louisiana Public Bid Law. La. R.S. 38:2212 et

seq. The trial court judgment is affirmed.