• Does the Public Bid Law Only Contain the Minimum Requirements for Bidding?
  • July 3, 2015 | Author: Jacob E. Roussel
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
  • It is generally accepted that one purpose of the Public Bid Law in the State of Louisiana is to create uniformity and consistency among the manner in which public projects are awarded. However, on March 13, 2015, the Louisiana Supreme Court denied a request to review an opinion issued by the Louisiana First Circuit Court of Appeal which held that a public entity can permissibly include requirements in its bidding documents that differ from the statutory requirements set forth in the Public Bid Law. According to this new case, bidders are now bound by any such additional and more stringent requirements imposed by the public entity.

    The case of Phylway Const., LLC v. Terrebonne Parish Consol. Gov't, 2013-1589 (La. App. 1 Cir. 9/5/14), 153 So. 3d 516, involved a bid protest initiated by the apparent third low bidder on a road construction project which sought to have the two lowest bids rejected as being non-responsive. While the trial court agreed that the low bid was non-responsive, the trial court concluded that the second low bid was responsive and ordered that the contract be awarded to the second low bidder. The First Circuit’s opinion reversed the trial court and held that the third low bidder should have been awarded the project.

    The specific issue in the case involved the timing of the second low bidder’s submittal of its post bid attestation affidavit. At the time of the bid opening, the Public Bid Law provided that “[o]ther documentation and information required including but not limited to the low bidder's attestation...shall be furnished by the low bidder within ten days after the bid opening.” However, the bidding documents (specifically, “Instructions to Bidders”) provided a more rigorous requirement that each bidder, as opposed to just the low bidder, submit the form within ten days. Because the first low bidder had not yet been declared non-responsive, the second low bidder did not submit its attestation affidavit within ten days of the bid opening. In other words, although the bidder complied with the statutory submittal requirement, it did not comply with the differing provision in the bidding documents.

    The second low bidder argued that the provision in the public entity’s bidding documents conflicted with the Public Bid Law, and therefore, was unenforceable. However, the First Circuit disagreed. In essence, the First Circuit held that the requirements in the Public Bid Law are simply the “minimum requirements,” and that bidders are required to comply with more stringent requirements set forth by a particular public entity.

    Notably, through Act 759 of the 2014 Regular Session, the Legislature amended the applicable provision in the Public Bid Law to state that “[t]he bidding documents shall not require any bidder, other than the apparent low bidder, to furnish any other information or documentation, including the Attestation Affidavit and the E-Verification Form, any sooner than ten days after the date bids are opened.” Arguably, if the identical issue presented in Phylway were to arise today, the result might be different. However, the language and reasoning utilized by the First Circuit in Phylway is likely to be applied in future disputes involving the Public Bid Law. Thus, as the law currently stands, bidders should be conscience of provisions in bidding documents for public projects that appear to differ from known statutory requirements and always air on the side of caution by adhering to the more stringent provision.