Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Board

76 So. 3d 548, 2011 La.App. 4 Cir. 0459, 2011 La. App. LEXIS 1120, 2011 WL 4486929
CourtLouisiana Court of Appeal
DecidedSeptember 28, 2011
DocketNo. 2011-CA-0459
StatusPublished
Cited by5 cases

This text of 76 So. 3d 548 (Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation 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
Enmon Enterprises, L.L.C. v. City of New Orleans ex rel. New Orleans Aviation Board, 76 So. 3d 548, 2011 La.App. 4 Cir. 0459, 2011 La. App. LEXIS 1120, 2011 WL 4486929 (La. Ct. App. 2011).

Opinions

EDWIN A. LOMBARD, Judge.

bEnmon Enterprises, L.L.C., d/b/a/ Jani-King of New Orleans, appeals to this court a judgment of the trial court denying a writ of mandamus to compel the New Orleans Aviation Board to award it a publicly bid contract to provide janitorial services for the Louis Armstrong New Orleans International Airport. For the following reasons, we affirm.

Factual and Procedural History

This matter concerns the bidding process for an “Airport Facilities Janitorial Services Contract” for the Louis Armstrong New Orleans International Airport, in which the successful bidder would provide services, labor, and materials for complete janitorial and maintenance of the numerous airport facilities, including but not limited to, all terminals, parking lots, and office buildings. The awarding of public bid contracts concerning improvements, betterments, maintenance, and operations of the airport are conducted by the New Orleans Aviation Board (NOAB). La.Rev. Stat. 2:351.

In November 2008, the NOAB began advertising for bids for the janitorial services contract. On January 6, 2009, the NOAB opened bidding for a five-year contract for janitorial services which included a three-year base bid and two one-tyear2 optional years. The NOAB provided pro[550]*550spective bidders with the advertisement for bids and multiple bidding documents. Included with the numerous bidding documents were addenda forms concerning necessary compliance with the State and Local Disadvantaged Business Enterprise (SLDBE), in which a certain percentage of the subcontract work must be performed by businesses with social or economic disadvantages.

The bid documents contained a “Notice to Bidders” page which contained the following relevant language:

BEFORE SIGNING AND SUBMITTING THIS BID PLEASE TAKE NOTE OF THE FOLLOWING. FAILURE TO PERFORM ANY ONE OF THESE ACTIONS SHALL CAUSE YOUR BID TO BE REJECTED.
... 4. MISTAKE IN BID: Bidder is responsible to review the Bid price for possible errors in calculation or Work erroneously omitted.

The NOAB received nine bids for the airport janitorial services contract, and opened the bids on January 13, 2009 after a one week extension. The NOAB retained the services of TMG Consulting, a planning and economics consulting firm, to evaluate the bids received and make suggestions as to responsiveness and quality of the bid submissions. TMG’s bid analysis report of January 28, 2009 stated that significant “responsiveness issues” by all of the bidders included failure to comply with (1) the SLDBE form requirements, and (2) calculation errors in bid amounts. TMG concluded that six of the nine bids received could be immediately determined to be “non-responsive.” One of these six was A.M.E. Services, Inc., whose bid failed to meet SLDBE form requirements.

The TMG report on the bid submitted by Enmon Enterprises (hereafter “Jani-King”) noted that their bid listed a subcontractor that was not a certified I «SLDBE registrant at the time of submission. It noted that “NOAB staff provided Jani-King notice of this situation and allowed them 12 calendar days to submit a qualified substitution.” The report further noted that Jani-King’s bid contained “a few Extension Errors and two Rounding Errors.” The report stated that “[i]f all arithmetic issues are corrected using the Unit Bid Prices, this bid is $0.29 more than the Total Bid Amount submitted.”

The two other bids considered somewhat responsive were submitted by ISS Facility Services and ABM Janitorial Services. The ISS Facility Services bid met the SLDBE percentage requirements, but contained “a few Extension Errors, one Summation Error in Item R-8, and one Rounding Error in the Bid Proposal amount ... If all arithmetic errors are corrected using the Unit Bid Prices, this bid is $4,556.70 less than the Total Bid Amount submitted.” The ABM Janitorial bid “contained some Extension Errors and one Rounding Error ... as discussed in Responsiveness Issue # 2. If all arithmetic issues are corrected using the Unit Bid Prices, this bid is $42.28 less than the Total Bid Amount submitted.” All nine of the bids submitted contained errors concerning either SLDBE form errors or calculation errors.

Of the three bids deemed conditionally responsive by the TMG report, Jani-King’s bid was the lowest. On February 26, 2009, the NOAB obtained a thirty day extension with Jani-King pursuant to La. Rev.Stat. 38:2215. At a March 18, 2009 public meeting of the NOAB, the board elected to reject all bids and re-advertise the janitorial services contract. Andree Cohen, The City of New Orleans’ Purchasing Administrator, wrote letters to all bidders, stating that “[mjany of the bidders ... struggled with two items — interpretation of the requirements for calculating the [551]*551percentage of SLDBE participation and unit price extension ^calculations.” In the NOAB’s letter to Jani-King, Ms. Cohen stated that “[s]pecifically, the decision to reject Jani-King of New Orleans’ bid was based upon the following: a. a few unit price extension errors and one rounding error on the bid schedule.”

On December 10, 2009, Jani-King filed a Petition for Writ of Mandamus against the NOAB and A.M.E. Services, asking the district court to compel the award of the Janitorial Services Contract to it. Jani-King claimed in the petition that the NOAB’s decision to reject all bids was arbitrary and capricious, and that the NOAB had no just cause to reject then-bid.

A full bench trial on the merits occurred on March 23, 2010. The first testifying witness was Mr. Dwight Norton of TMG Consulting, who testified with intricate detail concerning the bidding process, the making of SLDBE forms, and the calculations done in analyzing the bids. He testified that eight of the nine bidders had extension errors or calculation errors. John O’Neil, a Jani-King executive, provided testimony concerning filling out the unit price forms and accounting for insurance and bonding. Further testimony revealed the confusing and complex nature of the bid documents concerning the SLDBE requirements, bonding, and unit price directions. Following testimony and closing arguments, the trial court ruled against Jani-King, and gave reasons for denying mandamus relief in pertinent part:

THE COURT: I wanted the record to be clear about that. The Broadmoor, Hamp’s, Roof Technology line of cases have made it I think certain things very clear: there was a time when public agencies could exercise their discretion in what was significant and what was not, and the words used by the courts were substantial or insubstantial. On each occasion previous to this line of cases where the courts, I think it was in the Sullivan decision, where the courts said that’s not substantial. The |,legislature came in and said we’re not going to let you do that, courts. We want to get a bright line rule ...
[T]he legislature consistently overturned the courts with legislation to make this area of law more strict, more strident and more dark lined. It’s not a legal word but to be more clear about what we can allow and not allow as a waiver.
I appreciate that the mover in this action, the bid was rejected primarily on this number discrepancy issue.

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76 So. 3d 548, 2011 La.App. 4 Cir. 0459, 2011 La. App. LEXIS 1120, 2011 WL 4486929, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enmon-enterprises-llc-v-city-of-new-orleans-ex-rel-new-orleans-lactapp-2011.