Veolia Water North America -South, LLC v. City of Baton Rouge, Parish of East Baton Rouge Office of the Mayor-President

Opinion

VEOLIA WATER NORTH AMERICA —SOUTH, LLC

VERSUS

CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE OFFICE OF THE MAYOR -PRESIDENT

Judgment Rendered:

SEP 2 0 2024

On Appeal from the

19th Judicial District Court Parish of East Baton Rouge, State of Louisiana Trial Court No. 729871

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Robert E. Kerrigan, Jr. Attorneys for Plaintiff A - ppellant,

Raymond C. Lewis Veolia Water North America —South, LLC Brian S. Schaps Vew * r le - 3- &, ljoiji

Courtney K. Humphrey N_IN= Nmria*

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Michael P. Schillage City ot Baton A-ougeTarish ot-East Baton Rouge, Lo Baton Rouge, Office of the Mayor -

President

V. Thomas Clark, Jr. Attorneys for Intervenor -Appellee, Jacob E. Roussel Operations Management International, Inc, Baton Rouge, Louisiana

This appeal concerns a contract regarding operation and maintenance services

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Rouge ( City/Parish). Veolia Water North America — South, LLC ( Veolia Water) submitted an unsuccessful proposal for the contract, and now seeks review of the

trial court' s judgment dismissing Veolia Water' s petition to restrain, enjoin, and rohibit the award of the contract by the City/Parish to another proposer, Operatiods'

Management International, Inc. ( OMI), or any other proposer. For the followinM reasons, we affirm.

engage in a competitive solicitation process to select a qualified entity to enter into a long-term contract for services identified as " operations, maintenance[,] and asset management" for the City/Parish' s two wastewater treatment facilities. The RFP

provided that all proposals were subject to applicable provisions of Louisiana law,

including but not limited to" Public Bid Law ( La. R.S. 38: 2211, et seq.), the

forth detailed instructions for proposals to be submitted to the City/Parish, alonN

as details on how to protest the RFP itself and/or the award of the contract.

Additionally, the RFP stated that the City/Parish would conduct interviews of "up to three" proposers, but that the City/Parish reserved the right to enter into a contract

without any further discussion of a submitted proposal, making clear that the City/Parish, without limitation, held the right to accept or reject proposals at its " sole discretion." The RFP specifically stated that the award of the contract " shall be for the proposal that conforms to the RFP and " will be the moM

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advantageous" to the City/Parish, considering price, best value, and other factors.

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Environmental Services Director issued a memorandum to the City/Parish

that the ten- year operations and maintenance services contract be awarded to OMI.

The evaluation committee for the City/Parish made its selection on the basis that OMI met all of the RFP requirements, was very knowledgeable in the work, anM provided the best value for the services. Also on January 12, 2023, all of tl-a proposers were sent a notice of intent to award the services contract to OML It I undisputed that Veolia Water received the notice of intent letter on January 13, 2023.

operation and maintenance services on March 13, 2023.

one month before the contract was executed, the City/Parish received Veolia Water' s letter of protest of the award to (AML However, the City/Parish promptly notified Veolia Water on February 17, 2023, that the protest was untimely pursuant to the

days before the RFP deadline for proposals.' Thus, the deadline for filing a protem of the award was January 20, 2023. No protests were timely filed by any proposer,

1 Section 5. 13 of the RFP provides, in pertinent part: " Protests with regard to the RFP ... will not be considered after proposals are opened and must be received at least two ( 2) days prior to the due date and time RFP responses are due. Protests associated with contract award must be received within seven ( 7) days from the issuance of the notice of intent to award."

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including Veolia Water. Nevertheless, Veolia Water' s protest letter was sent to the

City/Parish, which outlined various reasons for the protest, including: violations of 11 IN I I KNEW 111 p

to the entire RFP process; a perceived unfairness concerning the evaluation of Veolia

Two days after the City/Parish executed the service contract with OMI, Veolia Water filed a petition on March 15, 2023, seeking to enjoin the award of the contract to OMI, a request for a temporary restraining order (TRO), and a writ of mandamifl concerning a public records request. Eleven exhibits were attached to the petition,

including the RFP, two notices of intent to award to OMI, letters regardinM interviews, Veolia Water' s protest, and the City/Parish' s responses. On March 17,

20231 the City/Parish filed a peremptory exception of no cause of action for ilinJunctive relief under f

cumulation of actions, and a declinatory exception of insufficiency of service of I!

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from awarding the contract to OMI, or to any other entity other than Veolia Water. On April 13, 2023, OMI filed a petition for intervention and filed a memorandum in

support of the City/Parish' s exceptions.

On March 29, 2023, a hearing took place on the TRO, injunctive relief, and

exceptions.

The parties were instructed to submit additional briefing and the TR(J

was left in place until another hearing was held on May 23, 2023. At the seconM hearing, the trial court orally ruled in favor of the City/Parish, sustaining the exception of no cause of action, agreeing that the contract awarded to OMI was n(M subject to the provisions of the public bid law and could not be enjoined on thM basis, and dissolving the TRO. A final judgment was signed on June 16, 201]. dismissing Veolia Water' s claims for injunctive relief against the City/Parish with

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prejudice. Additionally, the trial court sustained the City/Parish' s exceptions of unauthorized use of summary proceedings and improper cumulation of actiona

finding that Veolia Water could not enjoin or nullify a contract already executed by

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the City/Parish and OMI. It is from this judgment that Veolia Water appeals,

The function of an exception of no cause of action is to test the legal

sufficiency of the petition by detennining, whether the law affords a remedy on the operative facts alleged in the pleading. B & C Elec., Inc. v. East l3aton Rouge

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the context of the exception, a " cause of action" is defined as the operative facts that

give rise to the plaintiff' s right to judicially assert the action against the defendant. Terrebonne Parish Consolidated Government v. Duval, Funderburtl

evidence may be introduced to support or controvert the exception of no cause of 9ction. La. Code Civ. P. art. 93 1. The court reviews the petition and accepts well-

C Elec., 849 So. 2d at 619. Because the exception of no cause of action raiscs

Veolia Water argues that it has a cause of action as an interested party under the public bid laws, which govern the RFP and contract at issue, and that the

City/Parish violated the public bid process by awarding the contract to OMI based sn favoritism instead of the most advantageous or cost-effective proposal. Thus, Veolia Water contends the contract is a nullity. We find no merit to this argument. The Louisiana Supreme Court has long held that the public bid law was intended a apply to " public works" and not to public service contracts.' See Wallace Stevens,

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1975). Louisiana Revised Statutes 38- 2220(A) does not provide a remedy based on the acts alleged in Veolla Water' s pleading; rather, it allows nullification A purchase of materials or supplies, or any contract entered into for the construction of public works." " Public work" is defined in La. R.S. 38: 2211( A)( 13) as the

erection, construction, alteration, improvement, or repair of any public facility or

is for services identified as " operations, maintenance[,] and asset management" for

the City/Parish' s two wastewater treatment facilities. The trial court correctly concluded that this service contract does not fall within the purview of the Louisiana

recovery on this basis.

must comply with the requirements in its bid documents, it does not necessarily follow that its service contracts will be subject to Louisiana public bid laws or

provide remedies for contracts which are contrary to public bid laws. See Ramelli Janitorial Service, Inc. v. H& O Investments, LLC, 2022- 266 ( La. App. 5th Cir.

350 So.3d 588, 591- 592 ( drawing a • between an entity electinN to use the public bid law' s processes and requirements in practice versus granting a cause of action based on a law found to be inapplicable to service contracts to

2 Jurisprudence in all Louisiana Circuit Courts of Appeal have followed this now well-settled principle of law. See B & C Elec., 849 5o.2d at 620- 621; A. .

E_ Disaster Recovery Services, Inc. v. City of New Orleans, 2010- 1755 ( La. App. 4th Cir. 8/ 24/ 1, 1), 72 So3d 454, 457- 458, writ denied, 2011- 2088 ( La. 11/ 23/ 11), 76 So3d 1154; Waste Management of Central Louisiana v. Beall, 2003- 1710 ( La. App. 3rd Cir. 8/ 4/ 04), 880 So.2d 923, 930- 931, writ denied, 2004- 2642 ( La. 1/ 14/ 05), 889 So. 2d 269; Tiger Air & Heat, LLC v. Jefferson Parish School Board, 2002- 610

La. App, 5th Cir. 10/ 16/ 02), 832 So. 2d 324, 327, writ denied, 2002-2762 ( La. 3/ 14/ 03), 839 So. 2d 35; Browning-Ferris, Inc. v. City of Monroe, 465 So. 2d 882, 884 (La. App. 2d Cir.), writ denied, 467 So. 2d 538 ( La. 1985).

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potential bidders beyond what is provided in the bid documents). Thus, political

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in any sort of competitive bid process. However, there is no prohibition against a

political subdivision establishing a policy that requires an R.FP or competitive bid process to engage in when procuring professional services. See La. Atty. Gen. Op.

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Veolia Water also contends that it has a cause of action against the City/Parish because it timely filed suit to enjoin the City/Parish from awarding the contract to MMMMM

Water untimely file a protest after receiving the notice of the City/Parish' s intent to award the contract to OMI, Veolia Water also untimely sought injunctive relief against the City/Parish when it filed suit two days after the City/Parish executed the service contract with OMI, Once the act sought to be enjoined has occurred ( i.e.,

the execution of the contract with OMI), the injunctive relief sought by Veolia Water

was rendered moot and there is no ground for an injunction. In other words, the neeM for injunctive relief ceased to be a justiciable issue. See JB James Const., L.L.C.

v. Louisiana Dept. ! pand Development, 2011- 1086App. I st Cil] 12/ 21/ 11), 2011 WL 6776999, * 1 ( unpublished), writ denied, 2012- 0237 ( La.

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0594 ( La. 3/ 30/ 01), 788 So. 2d 1194. Appellate courts do not decide abstract or

hypothetical controversies or render advisory opinions about controversies. Doe I Ghoard of Supervisors of Louisiana State University and A & M College, 2023- 0246 (La. App. Ist Cir. 12/ 14/ 23), 380 So3d 91, 101.

Pursuant to La. Code Civ. P. art. 934 , if a petition falls to state a cognizable

cause of action and the grounds for the objection can be removed by amendment, the plaintiff should be allowed to amend his demand. See Richardson v. RoniC-

Depot USA, 2000- 0393 ( La. App. I st Cir. 3/ 28/ 01), 808 So.2d 544, 547. On the

the trial court is not required to allow amendment. The decision to allow amendment

is within the sound discretion of the trial court. Id. We find no abuse of discretion

in the trial court' s refusal to allow Veolia Water an opportunity to amend its petition, which would be a vain and useless act. See NOLA 180 v. Harrah' s Operatinm

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defective petition can be amended to state a lawful cause of action.).

For the outlined reasons, we affinn the judgment of the trial court. All costs

of this appeal are assessed to Veolia Water North America —South, LLC.

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