Written by: Brian S. Schaps
The Louisiana Public Bid Law is set forth in La. R.S. 38:2212 et. seq. The purpose of the law is to protect the taxpaying public by preventing public officials from awarding contracts on the basis of favoritism or at possibly exorbitant and extortionate prices.[1] For bids on public works, Louisiana now allows paper bids AND electronic bids. La. R.S. 38:2212(E)(1) provides that “[p]ublic entities shall provide, as an additional bidding option, a uniform and secure electronic system for the submittal of bids for public works requiring competitive bidding”. Thus, electronic bids are an additional bid option for bids on qualifying public works in Louisiana.
Every contractor should attempt to completely and accurately comply with the bidding instructions that are included in the bidding documents for the project. La. R.S. 38:2211(A) defines "Bidding documents" as the “the bid notice, plans and specifications, bid form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract.” Therefore, the instructions to the bidder may be contained in several different documents, and the contractor should review all of the “bidding documents” before preparing and submitting its bid.
In 2014, the Louisiana legislature amended the Public Bid Law in an attempt to clarify what information and documentation was required from bidders on public works. La. R.S. 38:2212(B)(2) provides that:
The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Signature of Bidder, Name, Title, and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution or written evidence of the authority of the person signing the bid, and Louisiana Contractors License Number, and [units prices, if utilized]. (emphasis added).
Section (B)(3)(a) of the same statute then states "[t]he bidding documents shall not require any bidder, other than the apparent low bidder, to furnish any other information or documentation … any sooner than ten days after the date bids are opened." Therefore, any supplemental information beyond what is listed in Section (B)(2) of the statute may be required after the bid opening.
In Durr Heavy Const. LLC v. City of New Orleans, the Louisiana Supreme Court held in a per curiam opinion that the failure of the bidder to include a proposal number on the submission envelope, as required in the Invitation to Bid, did not make the bid non-responsive. A proposal number is not one of the twelve exclusive items required by La. R.S. 38:2212(B)(2). Former Chief Justice Bernette Johnson explained in a concurring opinion that "the Public Bid Law now provides an exclusive list of the only twelve items of information which a public entity can require bidders to provide in the ‘bidding documents’ to evaluate the bid's responsiveness.”[2]
Based on the Public Bid Law and Louisiana cases discussing bid requirements, a contractor should certainly include all of the information required by La. R.S. 38:2212(B)(2) in its bid package. If the bidding documents state that additional information or documentation shall be submitted, the contractor should also endeavor to include that information or documentation, although it may not technically be required at the time of bidding by the Public Bid Law. Bid disputes can be expensive to the contractors involved and the public entity owner. In general, a contractor should attempt to comply with all of the instructions in the bidding documents rather than later risk incurring costs defending the responsiveness of its bid.
The wide-spread use and increasing adoption of electronic bidding will also likely present several potential issues that will be reviewed and decided by courts over the next several years. Are instructions on an electronic bidding website considered “bidding documents” pursuant to the Louisiana Public Bid Law? If not, what should a contractor do if the instructions on the electronic bidding website differ from or conflict with the “bidding documents?” The answers to these questions and questions like these will depend on the specific language in the “bidding documents.”
In sum, a contractor should endeavor to prepare its bid in strict conformance with the bidding documents and the Louisiana Public Bid law. However, if a conflict or ambiguity exists regarding the bid instructions or what documents comprise the bidding documents, it’s time to call an experienced construction lawyer to guide you through the bid process and any potential bid dispute that may follow.
For more information or assistance with a public bid or public bid dispute, please contact Brian Schaps at bschaps@deutschkerrigan.com or 504-581-5141.
[1] Airline Construction Company, Inc. v. Ascension Parish School Board, 568 So. 2d 1029, 1032 (La. 1990).
[2] Durr Heavy Const. LLC v. City of New Orleans, 2016-609 (La. 4/15/16), 189 So.3d 384.