Gilchrist Construction Co. v. East Feliciana Parish Police Jury

122 So. 3d 35, 2012 La.App. 1 Cir. 1307, 2013 WL 3483767, 2013 La. App. LEXIS 1432
CourtLouisiana Court of Appeal
DecidedJuly 11, 2013
DocketNo. 2012 CA 1307
StatusPublished
Cited by7 cases

This text of 122 So. 3d 35 (Gilchrist Construction Co. v. East Feliciana Parish Police Jury) 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
Gilchrist Construction Co. v. East Feliciana Parish Police Jury, 122 So. 3d 35, 2012 La.App. 1 Cir. 1307, 2013 WL 3483767, 2013 La. App. LEXIS 1432 (La. Ct. App. 2013).

Opinion

PETTIGREW, J.

| ?,Tlüs is an appeal by Gilchrist Construction Co., LLC. (Gilchrist) of a judgment that dismissed its action for nullity, and maintained the defendants’ exceptions of no right of action and prescription, finding Gilchrist had no right to contest as null a public bid contract that had been allegedly awarded in violation of Louisiana’s Public Bid Law, La. R.S. 38:2211 et seq., because Gilchrist’s objections thereto were untimely. After a thorough review of the record and applicable law, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In February 2012, the Parish of East Feliciana, through the East Feliciana Parish Police Jury (EFPPJ), published “Advertisement For Bids” in connection with a project, entitled East Feliciana Parish Unincorporated Road Repairs (the project), which involved the construction of an asphalt overlay for several roads within the parish. The engineer and the owner’s representative for the project was Shread-Kuyrkendall and Associates, Inc. (Shread). The advertisements instructed that all bids were to be delivered no later than 10 a.m. on March 15, 2012, and that they were to be filed in triplicate. The advertisements also noted that the owner reserves the right to reject any or all bids for just [37]*37cause, in accordance with Title 38 of the Revised Statutes [Louisiana’s Public Bid Law].

After submission of and opening of all bids, it was tabulated that Gilchrist submitted the lowest bid1; however, its bid was rejected as being non-responsive for failure to comply with the advertised requirement that it be submitted in triplicate. Accordingly, by letter to EFPPJ dated March 19, 2012, Shread recommended that the contract be awarded to the lowest responsive bidder, Coastal Bridge Company, L.L.C. (Coastal)2, noting in the letter that the lowest bidder, Gilchrist, was non-responsive for failing to submit its bid in triplicate as required by the advertisement.

l.gOn March 20, 2012, the matter of the award for the project was presented to the EFPPJ, which voted to award the contract to Coastal, in the amount of $1,959,489.00.

On March 28, 2012, Gilchrist filed an application for preliminary injunction, together with a separate pleading, entitled Petition for Permanent and Mandatory Injunction, Declaratory Judgment and for Damages. Primarily, Gilchrist sought to enjoin the EFPPJ from awarding, executing, or making payments under any contract to anyone other than Gilchrist, claiming to be the lowest responsive bidder for the project. In the alternative, Gilchrist sought an order that the EFPPJ reject all bids based on its own failure to comply with the Louisiana Public Bid Law. Specifically, Gilchrist contended that the EFPPJ failed to comply with La. R.S. 38:2212(A)(l)(f), which it claims mandates the EFPPJ (and all public entities) to provide potential bidders with the option to submit bids electronically and that the public entity include all bid documents on the electronic website for accepting public bids.

On April 2, 2012, Coastal filed a petition of intervention, claiming to have been awarded the contract for the project as the lowest responsive bidder. Coastal also asserted that Gilchrist’s request for injunc-tive relief was untimely, and/or prescribed, and should be dismissed on that basis. Coastal also asserted that Gilchrist is not an interested party with the right to bring this action, because its bid had been rejected as non-responsive because it failed to file its bid in triplicate. Finally, Coastal asserted in the alternative that Gilchrist had waived its’ right to complain about the bid process being defective or violative of statutory mandate, because it waited to complain about the lack of the option to file electronically until after the submission of its own bid and the award of the contract to another bidder. On April 9, 2012, Coastal filed exceptions of no right of action, prescription, and laches. The EFPPJ filed its own exception of no right of action and adopted, by reference, all arguments presented by Coastal.

On April 10, 2012, Gilchrist filed an unopposed motion to amend and supplement its original petition, to seek a declaratory judgment that the EFPPJ violated provisions of the Public Bid Law, and seeking to annul the contract that was awarded to Coastal. Gilchrist additionally sought attorney fees and damages.

14A hearing on the foregoing was held on April 11, 2012. Prior to the hearing, the parties entered into written stipulations that were entered into evidence to the effect that Gilchrist no longer sought to enjoin the award of the contract to Coastal, but was only proceeding for a declaration that the award of the contract was [38]*38null and void for failure of the EFPPJ to comply with the specific terms of the Public Bid Law; i.e., the requirement that bidders be given the option of electronic filing. The parties further stipulated that the remaining exceptions filed by EFPPJ and Coastal would be heard prior to but at the same hearing as the action for nullity.

The parties also stipulated the following pertinent facts: (1) that the EFPPJ published advertisements for and received bids pursuant to La. R.S. 38:2211 et seq.; (2) that EFPPJ did not provide bidders with the opportunity to submit bids electronically according to La. R.S. 38:2212(A)(l)(f), although the provision was applicable to that parish; (3) that no bidder, person, or entity objected in any manner to the advertisement, the bid form, or the bidding procedure at any time prior to the submission of bids or the award of the project; and more specifically, (4) that no bidder, including Gilchrist, requested to submit electronically, or objected to the lack of the opportunity to file the bids electronically; (5) that Gilchrist’s submitted bid was the lowest numerical bid of $1,924,081.00, and Coastal’s submitted bid was the second lowest numerical bid of $1,959,489.00; (6) that the EFPPJ, upon the recommendation of its project engineer, determined Gilchrist’s bid was non-responsive for failure to file in triplicate as required, and that its bid was therefore rejected on that basis; (7) that the project was then awarded to Coastal, the second lowest bidder and the lowest responsive bidder; (8) that neither EFPPJ, Gilchrist nor Coastal were aware at the time of the bidding process that the threshold for requiring the option of electronic bidding to parishes with a population of at least 50,-000 (inapplicable to East Feliciana Parish) had been amended with an effective date of August 15, 2011, to reduce the threshold to parishes with populations of at least 20,000 (which did apply to East Feliciana Parish); (9) that Gilchrist was allowed to file an amending and supplemental petition asserting an action to annul the award of the contract to Coastal, which nullity would be the sole remaining issue arising out of IfiGilchrist’s objections to the bidding process (thus, Gilchrist was relinquishing the action to enjoin the award of the contract to Coastal); and finally, (10) that the only issue outstanding, as between the parties, as of the time of entering into these stipulations, was the issue of nullity of any contract entered into in connection with the Project.

At the hearing, all of the documents related to the foregoing stipulation of facts were entered into evidence, as was the affidavit of Chad Juneau, COO of Gilchrist, which detailed the bidding process and the failure of that process to offer an option for electronic filing of bids.

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122 So. 3d 35, 2012 La.App. 1 Cir. 1307, 2013 WL 3483767, 2013 La. App. LEXIS 1432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilchrist-construction-co-v-east-feliciana-parish-police-jury-lactapp-2013.