Waste v. Madison Parish Police Jury

480 So. 2d 761, 1985 La. App. LEXIS 9817
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1985
DocketNo. 17362-CA
StatusPublished
Cited by3 cases

This text of 480 So. 2d 761 (Waste v. Madison 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
Waste v. Madison Parish Police Jury, 480 So. 2d 761, 1985 La. App. LEXIS 9817 (La. Ct. App. 1985).

Opinions

MARVIN, Judge.

American Waste, the next lowest bidder for a waste disposal contract under the public bid law, appeals a judgment rejecting its demands to preliminarily enjoin the Madison Parish Police Jury from entering into the contract with the ostensible lowest bidder, Waste Control, Inc. LRS 38:2211 et seq.

American Waste specifically asserts that if the police jury had given American Waste the statutory preference of five percent required to be given a Louisiana resident contractor, its bid of $4.62 per unit would have been the lowest preferential bid because Waste Control, Inc., which bid $4.53 per unit, was a non-resident contractor. LRS 38:2225(A).

Agreeing, we reverse and remand with directions.

THE STATUTE

By Act 894 of 1984 the Public Bid Law was amended to define Louisiana resident contractor and to require that a responsible Louisiana resident contractor be awarded the contract subject to the law if his or its bid is not more than five percent higher than the lowest responsible nonresident bid.

LRS 38:2225(A) now provides:

In the letting of contracts for public work by any public entity, except contracts financed in whole or in part by contributions or loans from any agency of the United States government, preference shall be given to Louisiana resident contractors over nonresident contractors. Any contract awarded by a public entity for the erection, construction, alteration, or repair of any public building or structure or for any public work or improvement for which competitive bidding is not required by law must be awarded to a Louisiana resident contractor, provided there is a Louisiana resident contractor available with the expertise required for the specific job. If competitive bidding is required by law, the contract must be awarded to the Louisiana resident contractor making the lowest responsible bid if the Louisiana resident contractor’s bid is not more than five percent higher than the lowest responsible nonresident bid.

“Louisiana resident contractor” is now defined by LRS 38:2211(A)(7)(a):

[763]*763For the purposes of this Section, a “Louisiana resident contractor” includes any person, partnership, association, corporation, or other legal entity and is defined as one that either:
SjS * Sfc ⅜4 * *
(iii) For two years prior to bidding has maintained a valid Louisiana contractor’s license and has operated a permanent facility in the state of Louisiana and has not had a change in ownership or control throughout those two years.

The statutory policy is clear and unambiguous. Responsible Louisiana resident contractors shall be preferred by the public entity over responsible nonresident contractors to the extent that the statute directs.

The record establishes that the bid of American Waste ($4.62 per unit) is not more than five percent higher than the bid of Waste Control, Inc. ($4.53 per unit).

ISSUES

The critical issues then are these:

1. Is American Waste a responsible Louisiana resident contractor as defined by the statute?

2. Is Waste Control, Inc. a non-resident contractor?

3. Is the bid of American Waste ambiguous in any respect?

4. Is the preference automatically to be applied even though American Waste did not claim benefit of the preference in its bid or before the contract was let?

5. Is the police jury excepted from the statutory preference requirement because of the possibility or likelihood that some federal funds might be diverted by the police jury to partially defray the cost of the contract?

6. What relief is available to a Louisiana resident contractor whose preference is not recognized? American Waste has prayed that the contract between the police jury and Waste Control, Inc. be set aside and that the police jury be mandatorily directed or enjoined to execute the contract with American Waste as the lowest responsible Louisiana resident contractor.

The trial court found that American Waste had not proved it was entitled to the preference and that the police jury had not acted in an arbitrary and capricious manner in letting the contract.

We shall consider these issues in the order stated and in the light of the facts established in the record.

FACTS

The notice to bidders, published on January 4, stated that bids were to be opened on January 24, 1985. The bidding requirements furnished by the police jury did not mention the statutory preference to be given responsible Louisiana resident contractors. The police jury obviously was not aware of the statute. The bidding requirements clearly provided, in Art. 7, that in case of a discrepancy between words and figures in a bid, the words would control.

On January 24 the police jury opened three bids:

Waste Control, Inc. $4.52 average unit price
American Waste $4.62 average unit price*
Browning Ferris $4.84 average unit price*

Bids were formally taken “under advisement” for recommendations to the police jury by the engineer hired by the police jury.

On February 14, the engineer’s recommendation was considered by the police jury and the police jury then formally referred the bids to the district attorney for his recommendation.

On February 28 the district attorney declined to recommend any bid and suggested that the police jury could either award the contract or reject all bids. The bid of Waste Control, Inc. was formally accepted, and the president of the police jury was authorized to contract with Waste Control. The contract was executed, becoming effective on March 8, and was filed on the parish records March 13. American [764]*764Waste’s action was instituted March 19, 1985.

Judgment was signed and appealed April 9. On June 6, 1985, this court ordered an expedited hearing on August 19, 1985.

ISSUES 1 and 2

The record establishes that Waste Control, Inc. is a Mississippi contractor and that American Waste is, and has been, since 1975, a Louisiana resident contractor. The engineer advised the jury at its meeting on February 14, 1985, that he considered American Waste a responsible bidder. We find American Waste to be a Louisiana resident contractor and Waste Control, Inc. to be a nonresident contractor within the meaning of §§ 2211 A(7)(a), 2225 A, quoted above.1 The trial court did not, and in the light of the record, could not, find otherwise.

ISSUE 3

By the express language of the bidding instructions, American Waste’s written bid, when construed as a whole, binds American Waste to the average bid of $4.62 per unit for the five years of the proposed contract term. The average bid is the basis on which the contract was to be awarded and prevails over the bid for each year. The bid proposal form provides:

The five year average rate shall be the sum of Item 1, A-E divided by five and extended on the appropriate, line.

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Related

AMERICAN WASTE AND POLLUTION CONTROL CO. v. Madison Parish Police Jury
488 So. 2d 940 (Supreme Court of Louisiana, 1986)
American Waste & Pollution Control Co. v. Madison Parish Police Jury
481 So. 2d 1324 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
480 So. 2d 761, 1985 La. App. LEXIS 9817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waste-v-madison-parish-police-jury-lactapp-1985.