• Bidding Requirements: Do They Exceed or Conflict with the Public Bid Law?
  • November 23, 2018 | Author: Margaret A. Martin
  • Law Firm: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
  • The recent case of Barriere Constr. Co. v. Par. of Tangipahoa, 2018-0279 (La. App. 1 Cir. 9/24/18), which involved a project for which bids were submitted on a unit-price basis, serves as an example. After the bids were opened, the apparent low bidder notified the owner of an error in its bid as written on the bid form. Specifically, the total bid should have been higher based upon an extension of the bidder’s unit prices. The bidder, however, asserted that it was entitled to be awarded the contract since its “corrected” bid amount was still less than the next lowest bid.

    The responsiveness of the bid was challenged based upon a provision in the bidding documents which stated that “the total amount bid shall be in the sum of the correct extensions of the unit price bid on each item of work multiplied by the approximate quantity of work shown for the respective item.” The apparent low bidder countered that its bid was responsive because La. R.S. 38:2212(B)(6)(c) of the Public Bid Law addresses the precise scenario and states that “[i]f the public works requires unit price bids and there is a discrepancy between the base bid total and the sum of the extended unit prices, the unit price bid shall govern.”

    The First Circuit concluded that the bid was responsive. In its ruling, the Court cited to one of its previous cases which held that a public entity may include requirements in its bidding documents which exceed what is required by the Public Bid Law, as long as the statutory requirements are also met. However, the Court explained that enforcement of the provision in the bidding documents which required the “correct” extension of the unit prices would render meaningless La. R.S. 38:2212(B)(6)(c), which statute recognizes that there may be clerical errors in calculating the total bid on unit-price projects and provides a special rule for determining the “correct” amount. Thus, the Court stated that the provision in the bidding documents conflicted with, rather than merely exceeded, the Public Bid Law.

    The Court’s reasoning in Barriere Constr. Co. v. Par. of Tangipahoa is consistent with the ruling of the Louisiana Supreme Court from 2016 in Durr Heavy Const., LLC v. City of New Orleans, 2016-609 (La. 4/15/16), 189 So. 3d 384. In Durr, the issue was the enforceability of a provision in the bidding documents which required bid envelops to bear the project proposal number, a requirement not contained in the Public Bid Law. The Louisiana Supreme Court reversed a ruling from the appellate court which enforced the additional requirement. A concurring opinion issued by one of the justices of the Louisiana Supreme Court explained that La. R.S. 38:2212(B)(2) which governs the list of items required to be submitted with a bid states “The bidding documents shall require only the following information and documentation to be submitted by a bidder...” The additional requirement in the bidding documents that envelops bear the project proposal number is not one of the “only” items which the statute states can be required, and therefore, the bidding documents arguably conflicted with the statute.

    Based upon Barriere, which is supported by the concurring opinion in Durr, it appears that the Courts are willing to enforce requirements in bidding documents which exceed what is required by the Public Bid Law, but not requirements in bidding documents which conflict with express provisions of the Public Bid Law. Therefore, in instances where a bidder fails to adhere to a requirement in the bidding documents which is inconsistent with the statutory provisions of the Public Bid Law, an analysis of whether the inconsistent requirement conflicts with, as opposed to merely exceeds, the statute may be determinative of how a challenge to the bid is resolved.