LAMAR CONTRACTORS, * NO. 2021-CA-0489 L.L.C. * VERSUS COURT OF APPEAL * CITY OF NEW ORLEANS AND FOURTH CIRCUIT SMITH CONSTRUCTION CO. * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-12416, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** Judge Daniel L. Dysart ******
(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Paula A. Brown)
David C. Fleshman BREAZEALE, SACHSE & WILSON, L.L.P. One American Place 23rd Floor P.O. Box 3197 Baton Rouge, LA 70821-3197
Steven B. Loeb BREAZEALE SACHSE & WILSON, L.L.P. One American Place, 23rd Floor P.O. Box 3197 Baton Rouge, LA 70821-3197
COUNSEL FOR PLAINTIFF/APPELLANT Mark Daniel McNamara TRIAL COUNSEL Donesia D. Turner SENIOR CHIEF DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED DECEMBER 15, 2021 DLD JFM In this Public Bid Law case, the plaintiff, Lamar Contractors, L.L.C., PAB appeals the trial court’s denial of its preliminary injunction and motion for
summary judgment as well as the trail court’s granting of summary judgment in
favor of the defendant, the City of New Orleans. For the reasons that follow, we
affirm.
FACTS AND PROCEDURAL HISTORY
On September 4, 2019, the City of New Orleans issued an invitation to bid
on the EMD Central Maintenance Facility public construction project.
Submissions were due on October 4, 2019. Pursuant to the bid specifications, the
two apparent lowest bidders were required to submit to the City’s Purchasing
Bureau certain documents, including DBE1 Compliance Form-1 (DBE
Responsiveness) and DBE Compliance Form-2 (Documentation of Good Faith
Efforts).
The bid specifications also set forth a disadvantaged business enterprise
contract goal of 35%. The Bid Documents included “DBE Program Information,”
1 Disadvantaged Business Enterprise.
1 with the headings: DBE Program Compliance; DBE Contractor Goal; DBE
Directory; Good Faith Effort Policy; Required DBE Forms for Bids/RFPs/RFQs;
Contractor Cooperation; Post-Award Modification; Monitoring DBE Participation;
and Failure to Comply. Pursuant to the documents, “[i]f a Bidder/Proposer fails to
submit documented Good Faith Efforts as outlined, the bid shall be considered
non-responsive.” Further, the documents stated that “[t]he OSD2 may take into
account the performance of other Bidders/Proposers in meeting the contract DBE
participation goal and may, if deemed advisable, request further information,
explanation or justification from any Bidder/Proposer.”
Lamar, the lowest responsive bidder, submitted post-bid documentation
including DBE Compliance Form-1 and Form-2. Form-2 was required because
Lamar failed to meet the project’s 35% DBE goal. Form-2 required Lamar to
demonstrate the good-faith efforts it took towards trying to achieve the DBE
participation goal.
Lamar’s initial post-bid documentation indicated that it only solicited 10
DBEs to perform work on the project. Due to Lamar’s post-bid submission’s
deficiency, the OSD reached out to Lamar to confirm the number of DBEs
contacted. Lamar informed the OSD that it had contacted more than 10 DBEs.
The OSD requested that Lamar resubmit the section of the post-bid documents
where all contacted DBEs are to be listed as well as any supporting documentation,
thereby giving Lamar an additional opportunity to demonstrate responsibility.
2 Office of Supplier Diversity.
2 Lamar submitted a second, updated DBE form that included a total of 25
DBEs as well as supporting documentation. After review of the second
submission, the OSD still determined that Lamar’s good faith efforts were
insufficient. In concluding its review, the OSD determined that Lamar “did not
demonstrate the minimum good faith efforts required to reach the [DBE] goal and
therefore is not responsible to the bid requirements” as set forth in the bid
solicitation. Lamar was informed of this decision on November 13, 2019.
An informal hearing on Lamar’s responsibility was held pursuant to La. R.S.
38:2212(X), wherein Lamar put forth evidence of its efforts to solicit DBE firms.
Following the hearing, the hearing officer issued a ruling finding that “the City was
successful in proving that Lamar is not a responsible bidder for failing to
demonstrate good faith efforts as required for DBE compliance.
On December 2, 2019, Lamar filed the instant litigation. The trial court
denied Lamar’s petition for preliminary injunction on March 4, 2020. On March
12, 2021, a hearing concerning Lamar’s and the City’s competing motions for
summary judgment took place before the trial court. On May 12, 2021, the trial
court denied Lamar’s motion for summary judgment, granted the City’s motion for
summary judgment, and dismissed Lamar’s claims with prejudice. Lamar now
appeals.
DISCUSSION
On appeal, Lamar raises the following assignments of error: (1) the district
court erred when it granted the motion for summary judgment filed by the City and
3 denied the preliminary injunction and the motion for summary judgment filed by
Lamar; (2) the district court erred by failing to address the uncontested fact that the
evidence presented by Lamar at the administrative hearing was not considered part
of the ruling; (3) the district court erred by granting the City’s summary judgment
which effectively deprived Lamar of its property right to the public contract,
without due process of law, given the undisputed fact that Lamar was the lowest
responsive bidder; and (4) the district court erred by failing to award injunctive
relief and/or damages, and by granting the City’s summary judgment which
effectively deprived Lamar of its property right to the public contract, without due
process of law.
In an appeal of the granting or denial of a preliminary injunction, the
reviewing court must look at “whether the trial court committed an error of law or
made a factual finding which is manifestly erroneous or clearly wrong.” Hamp’s
Const., L.L.C. v. Housing Authority of New Orleans, 2010-0816, p. 3 (La.App. 4
Cir. 12/1/10), 52 So.3d 970, 973 (quoting Saunders v. Stafford, 2005-0205, p. 5
(La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754). The same standard of review is
also applied to the factual findings of an administrative hearing officer. Alexander
v. Pellerin Marble & Granite, 630 So.2d 706, 710 (La. 1/14/94).
Appellate courts review summary judgments de novo, “using the same
criterial applied by the trial court to determine the appropriateness of summary
judgment, i.e., whether there is any genuine issue of material fact and whether the
moving party is entitled to summary judgment as a matter of law.” Madison v.
4 Inter-Cont’l Hotels Corp., 2014-0717 (La.App. 4 Cir. 8/26//15), 173 So.3d 1246,
1250 citing Schroth v. Estate of Samuel, 2011-1385, p. 3 (La.App. 4 Cir. 4/18/12),
90 So.3d 1209, 1211; Schultz v. Guoth, 2010-0343, pp. 5-6 (La. 1/19/11), 57 So.3d
1002, 1005-06.
The Louisiana Public Bid Law (“LPBL”) permits a public body to disqualify
a bidder if it is found to be either “nonresponsive” or “non-responsible.” La. R.S.
38:2212. “Responsiveness” and “responsibility” are distinct legal concepts with
distinct consequences.
The initial determination of whether a bidder is responsive is purely
ministerial.
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LAMAR CONTRACTORS, * NO. 2021-CA-0489 L.L.C. * VERSUS COURT OF APPEAL * CITY OF NEW ORLEANS AND FOURTH CIRCUIT SMITH CONSTRUCTION CO. * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-12416, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** Judge Daniel L. Dysart ******
(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Paula A. Brown)
David C. Fleshman BREAZEALE, SACHSE & WILSON, L.L.P. One American Place 23rd Floor P.O. Box 3197 Baton Rouge, LA 70821-3197
Steven B. Loeb BREAZEALE SACHSE & WILSON, L.L.P. One American Place, 23rd Floor P.O. Box 3197 Baton Rouge, LA 70821-3197
COUNSEL FOR PLAINTIFF/APPELLANT Mark Daniel McNamara TRIAL COUNSEL Donesia D. Turner SENIOR CHIEF DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED DECEMBER 15, 2021 DLD JFM In this Public Bid Law case, the plaintiff, Lamar Contractors, L.L.C., PAB appeals the trial court’s denial of its preliminary injunction and motion for
summary judgment as well as the trail court’s granting of summary judgment in
favor of the defendant, the City of New Orleans. For the reasons that follow, we
affirm.
FACTS AND PROCEDURAL HISTORY
On September 4, 2019, the City of New Orleans issued an invitation to bid
on the EMD Central Maintenance Facility public construction project.
Submissions were due on October 4, 2019. Pursuant to the bid specifications, the
two apparent lowest bidders were required to submit to the City’s Purchasing
Bureau certain documents, including DBE1 Compliance Form-1 (DBE
Responsiveness) and DBE Compliance Form-2 (Documentation of Good Faith
Efforts).
The bid specifications also set forth a disadvantaged business enterprise
contract goal of 35%. The Bid Documents included “DBE Program Information,”
1 Disadvantaged Business Enterprise.
1 with the headings: DBE Program Compliance; DBE Contractor Goal; DBE
Directory; Good Faith Effort Policy; Required DBE Forms for Bids/RFPs/RFQs;
Contractor Cooperation; Post-Award Modification; Monitoring DBE Participation;
and Failure to Comply. Pursuant to the documents, “[i]f a Bidder/Proposer fails to
submit documented Good Faith Efforts as outlined, the bid shall be considered
non-responsive.” Further, the documents stated that “[t]he OSD2 may take into
account the performance of other Bidders/Proposers in meeting the contract DBE
participation goal and may, if deemed advisable, request further information,
explanation or justification from any Bidder/Proposer.”
Lamar, the lowest responsive bidder, submitted post-bid documentation
including DBE Compliance Form-1 and Form-2. Form-2 was required because
Lamar failed to meet the project’s 35% DBE goal. Form-2 required Lamar to
demonstrate the good-faith efforts it took towards trying to achieve the DBE
participation goal.
Lamar’s initial post-bid documentation indicated that it only solicited 10
DBEs to perform work on the project. Due to Lamar’s post-bid submission’s
deficiency, the OSD reached out to Lamar to confirm the number of DBEs
contacted. Lamar informed the OSD that it had contacted more than 10 DBEs.
The OSD requested that Lamar resubmit the section of the post-bid documents
where all contacted DBEs are to be listed as well as any supporting documentation,
thereby giving Lamar an additional opportunity to demonstrate responsibility.
2 Office of Supplier Diversity.
2 Lamar submitted a second, updated DBE form that included a total of 25
DBEs as well as supporting documentation. After review of the second
submission, the OSD still determined that Lamar’s good faith efforts were
insufficient. In concluding its review, the OSD determined that Lamar “did not
demonstrate the minimum good faith efforts required to reach the [DBE] goal and
therefore is not responsible to the bid requirements” as set forth in the bid
solicitation. Lamar was informed of this decision on November 13, 2019.
An informal hearing on Lamar’s responsibility was held pursuant to La. R.S.
38:2212(X), wherein Lamar put forth evidence of its efforts to solicit DBE firms.
Following the hearing, the hearing officer issued a ruling finding that “the City was
successful in proving that Lamar is not a responsible bidder for failing to
demonstrate good faith efforts as required for DBE compliance.
On December 2, 2019, Lamar filed the instant litigation. The trial court
denied Lamar’s petition for preliminary injunction on March 4, 2020. On March
12, 2021, a hearing concerning Lamar’s and the City’s competing motions for
summary judgment took place before the trial court. On May 12, 2021, the trial
court denied Lamar’s motion for summary judgment, granted the City’s motion for
summary judgment, and dismissed Lamar’s claims with prejudice. Lamar now
appeals.
DISCUSSION
On appeal, Lamar raises the following assignments of error: (1) the district
court erred when it granted the motion for summary judgment filed by the City and
3 denied the preliminary injunction and the motion for summary judgment filed by
Lamar; (2) the district court erred by failing to address the uncontested fact that the
evidence presented by Lamar at the administrative hearing was not considered part
of the ruling; (3) the district court erred by granting the City’s summary judgment
which effectively deprived Lamar of its property right to the public contract,
without due process of law, given the undisputed fact that Lamar was the lowest
responsive bidder; and (4) the district court erred by failing to award injunctive
relief and/or damages, and by granting the City’s summary judgment which
effectively deprived Lamar of its property right to the public contract, without due
process of law.
In an appeal of the granting or denial of a preliminary injunction, the
reviewing court must look at “whether the trial court committed an error of law or
made a factual finding which is manifestly erroneous or clearly wrong.” Hamp’s
Const., L.L.C. v. Housing Authority of New Orleans, 2010-0816, p. 3 (La.App. 4
Cir. 12/1/10), 52 So.3d 970, 973 (quoting Saunders v. Stafford, 2005-0205, p. 5
(La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754). The same standard of review is
also applied to the factual findings of an administrative hearing officer. Alexander
v. Pellerin Marble & Granite, 630 So.2d 706, 710 (La. 1/14/94).
Appellate courts review summary judgments de novo, “using the same
criterial applied by the trial court to determine the appropriateness of summary
judgment, i.e., whether there is any genuine issue of material fact and whether the
moving party is entitled to summary judgment as a matter of law.” Madison v.
4 Inter-Cont’l Hotels Corp., 2014-0717 (La.App. 4 Cir. 8/26//15), 173 So.3d 1246,
1250 citing Schroth v. Estate of Samuel, 2011-1385, p. 3 (La.App. 4 Cir. 4/18/12),
90 So.3d 1209, 1211; Schultz v. Guoth, 2010-0343, pp. 5-6 (La. 1/19/11), 57 So.3d
1002, 1005-06.
The Louisiana Public Bid Law (“LPBL”) permits a public body to disqualify
a bidder if it is found to be either “nonresponsive” or “non-responsible.” La. R.S.
38:2212. “Responsiveness” and “responsibility” are distinct legal concepts with
distinct consequences.
The initial determination of whether a bidder is responsive is purely
ministerial. The public entity must ensure that the bidder has met each and every
post-bid requirement and has no ability to waive discrepancies. La. R.S.
38:2212(B)(1); see also Broadmoor, L.L.C. v. Ernest N. Morial New Orleans
Exhibition Hall Auth., 2004-0211 (La. 3/18/04), 867 So.d 651, 647-58. An
apparent low bidder is non-responsive when it “does not submit the proper
information or documentation as required by the bidding documents” within ten
(10) days after the bid is opened. La. R.S. 38:2212(B)(3)(a). In such case, the
public entity may award the contract to the next apparent low bidder that is
responsive. Id. A non-responsive bidder has no right to an administrative hearing
under the LPBL. Triad Res. & Sys. Holdings, Inc. v. Parish of Lafourche, 77
So.2d 86, 90 (La.App. 1 Cir. 1990).
The second step – to determine is a bidder is “responsible” – is
discretionary. Here, the public entity may consider the bidder’s “financial ability,
5 skill, integrity, business judgment, experience, reputation, quality of previous work
on contracts, and other similar factors bearing on the bidder’s ability to
successfully perform the contract.” Broadmoor, 867 So.2d at 656; A.M.E. Disaster
Recovery Services, Inc. v. City of New Orleans, 2010-1755 (La.App. 4 Cir.
8/24/11), 72 So.3d 454, 456. If the public entity find that a bidder is non-
responsible, the entity must provide the bidder with written notice of the reason(s)
for its finding. La. R.S. 38:2212(X)(1)(a). The bidder must also be provided an
opportunity to refute the reasons for the proposed action.” La. R.S.
38:2212(X)(1)(b).
In the instant case, Lamar’s arguments in its assignments of error one
through three are all essentially variations of the same argument. Lamar does not
dispute that its efforts prior to the hearing were insufficient to demonstrate its good
faith efforts to meet the City’s DBE goals. Rather, Lamar attempts to argue that it
was somehow denied due process and not afforded an opportunity to have a
hearing pursuant to La. R.S. 38:2212(X).
On November 15, 2019, Lamar was afforded an opportunity to have an
informal hearing to rebut the finding of the OSD that Lamar was not responsible.
Both the OSD and Lamar were present at the hearing and given the opportunity to
present oral argument, evidence, witness testimony, and to cross-examine
witnesses. However, nothing presented at the hearing refuted the fact that Lamar’s
bid was not responsible because it failed to provide sufficient evidence of good
faith efforts prior to or on November 13, 2019, the date of the OSD’s decision.
6 The purpose of the administrative “responsibility” hearing is to afford the
rejected bidder “the opportunity to refute the reasons for the proposed action.” La.
R.S. 33:2212(X)(1)(b). Lamar was given this opportunity and the hearing officer
concluded that the City was correct in its determination that Lamar was not
responsible and that Lamar had not successfully refuted the City’s reason for
rejection. As such, Lamar’s due process rights under the LPBL were satisfied.
It is well established that the City is vested with the power and “wide
discretion” to determine the responsibility of a bidder in awarding a public bid.
See Broadmoor, 867 So.2d 651 at 656; A.M.E. Disaster Recovery Services, 72
So.3d at 456; J.W. Rombach v. Parish of Jefferson, 95-829 (La.App. 5 Cir.
2/14/96), 670 So.2d 1305, 1310. Accordingly, when reviewing such a
determination, the court should not substitute its judgment for the good faith
judgment of the City. A.M.E. Disaster Recovery Services, 72 So.3d at 456; J.W.
Rombach, 670 So.2d at 1311. Rather, the duty of the court is to determine whether
the City acted in a fair and legal manner and not arbitrarily in disqualifying a
bidder as non-responsible. Id. There is no evidence in the record to support the
position that the City’s decision to reject Lamar as a non-responsible bidder was
arbitrary, unfair or contrary to law. Accordingly, the denial of Lamar’s
preliminary injunction and motion for summary judgment as well as the granting
of the City’s motion for summary judgment are all proper.
7 Considering our approval the aforementioned denial of Lamar’s preliminary
injunction and summary judgment, any award of damages or attorney’s fees to
Lamar is precluded.
CONCLUISION
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED