Willie Lathan and Lathan Construction, LLC. v. City of Gonzales through Mayor Barney Arceneaux ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 0825
WILLIE LATHAN AND LATHAN CONSTRUCTION, LLC
VERSUS
CITY OF GONZALES THROUGH MAYOR BARNEY
ARCENEAUX
Judgment Rendered:
FEB 2 5 2022
C
On Appeal from the
23rd Judicial District Court
U
In and for the Parish of Ascension
State of Louisiana
Trial Court No. 130554
Honorable Jason Verdigets, Judge Presiding
Brian G. Smith Attorneys for Plaintiffs -Appellants,
Anselm N. Nwokorie Willie Lathan and Lathan
Farmerville, LA Construction, LLC
Matthew I. Percy Attorneys for Defendant -Appellee,
Jamie I. Schutte City of Gonzales through Mayor
Anna Q. Skias Barney Arceneaux
Gonzales, LA
BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.
HESTER, J.
Plaintiffs, Willie Lathan and Lathan Construction, LLC, appeal the trial
court' s judgment in favor of defendant, the City of Gonzales, which denied a
temporary restraining order, preliminary injunction, mandamus relief, and
declaratory judgment in connection with a public bid for a public works project. For
the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Pursuant to the Louisiana Public Bid Law, La. R.S. 38: 2211, et seq., the City
of Gonzales ( the " City") publicly advertised the Silverleaf Demolition Project ( the
Project"), which advertisement indicated that bids would be accepted on December
10, 2020. The Project involved, in part, the removal of all structures, public
facilities, and utility infrastructure above and below ground and required that the
work be performed by a contractor properly licensed and certified to perform the
required tasks. A bid packet was timely submitted by Lathan Construction, LLC
through Mr. Lathan. Included in Lathan Construction, LLC' s bid packet was
documentation from the Louisiana State Licensing Board for Contractors certifying
that " Lathan Construction LLC" was duly licensed (License No. 60469) and entitled
to practice in the classifications of rigging, house moving, wrecking, and dismantling
through December 18, 2021. The Uniform Public Works Bid Form' ( the " Bid
Form") submitted with Lathan Construction, LLC' s bid packet identified the name
of bidder as " Willie Lathan," the name of the authorized signatory of bidder as
Willie Lathan," and the title of the authorized signatory as " owner." The Bid Form
was signed by " Willie Lathan." Lathan Construction, LLC is not mentioned or
Pursuant to La. R. S. 38: 2212( B)( 2), "[
a] ny public entity advertising for public work shall
use only the Louisiana Uniform Bid Form as promulgated in accordance with the Administrative
Procedure Act by the division of administration, office of facility planning and control." The
Louisiana Uniform Bid Form is published in the Louisiana Administrative Code, Title 34, Part III,
Chapter 3. We note that the legislature has subsequently amended La. R.S. 38: 2212( B)( 2);
however, that amendment is not at issue in this appeal. See 2021 La. Act 205, § 1 ( eff. Aug. 1,
2021).
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identified anywhere on the Bid Form itself. The bid packet also contained a
document identifying the bidder as a limited liability company with a company name
of " Lathan Construction LLC." This document listed " Willie Lathan" as the
signatory. Additionally, a resolution authorizing Mr. Lathan' s signature on behalf
of Lathan Construction, LLC was included in the bid packet.
Jacqueline Bowmen, the chief engineer for the City who was responsible for
administering public bid documents and the opening process, notified Mr. Lathan
that the bid he submitted was potentially the low bid, and a special meeting was
called by the city council to award the contract. However, this meeting was canceled
due to the additional legal review of the documents submitted,' which review
indicated that Mr. Lathan' s bid was nonresponsive. The next two lowest bids were
also determined to be nonresponsive, and the contract was ultimately awarded to the
fourth lowest bidder.
Thereafter, Mr. Lathan and Lathan Construction, LLC ( sometimes
collectively referred to as " plaintiffs") filed a Petition for Temporary Restraining
Order, Preliminary Injunction, Permanent Injunction, Mandamus Relief and
Declaratory Judgment ( the " Petition") on January 20, 2021. According to the
Petition, Mr. Lathan, acting on behalf of Lathan Construction, LLC, submitted the
lowest bid on the Project, which the City acknowledged. However, the City later
advised that they would not be awarding the Project to Mr. Lathan. The Petition
alleged that the City was obligated to award the contract to Lathan Construction,
LLC, which was the lowest responsive and responsible bidder pursuant to La. R.S.
38: 2212.
Plaintiffs claimed entitlement to injunctive relief, including a temporary
restraining order and a preliminary injunction, pursuant to La. Code Civ. P. art. 3601,
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According to Ms. Bowmen' s testimony, she received three different legal protests from
other bidders on the Project and referred the protests and bids to the City' s attorney for legal
review.
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et seq., alleging that irreparable injury, loss, and damage would result if the City was
allowed to proceed with awarding the contract to the next lowest bidder. Permanent
injunctive relief was requested, prohibiting the City from rejecting plaintiffs' bid for
the Project, and mandamus relief was requested because, as alleged, the law afforded
no relief to plaintiffs by ordinary means. Additionally, plaintiffs requested a
declaration that the City violated the Louisiana Public Bid Law, La. R.S. 38: 2211,
et seq., as well as the bid documents.
The trial court issued a temporary restraining order on January 22, 2021. On
February 2, 2021, the trial court held the hearing on plaintiffs' preliminary
injunction, during which time the trial court heard the parties' arguments, the
testimony of Mr. Lathan and Ms. Bowmen, and received evidence. At the
conclusion of the hearing, the trial court denied plaintiffs' Petition, and signed a
judgment in conformity with its ruling on March 2, 2021. Plaintiffs timely appealed
and assign as error the trial court' s denial of their request for a temporary restraining
order, a preliminary injunction, mandamus relief, and a declaratory judgment.
LAW AND ANALYSIS
The Louisiana Public Bid Law is a prohibitory law founded on public policy.
Hamp' s Construction, L.L.C. v. City of New Orleans, 2005- 0489 ( La. 2/ 22/ 06),
924 So. 2d 104, 107. Louisiana Revised Statutes 38: 2212( A)( 1)( a) mandates that all
public work exceeding the defined contract limit as set forth in La. R.S.
3 8: 2212( C)( 1) 3 be advertised and let by contract to the " lowest responsible and
responsive bidder."'
3 Louisiana Revised Statutes 38: 2212( C)( 1) was amended to increase the contract limit
from $150, 000 to $ 250, 000. See 2020 La. Act 111, § 1 ( eff. July 1, 2020).
4 As defined in La. R.S. 38: 2211( A)( 13), " public work" refers to the erection, construction,
alteration, improvement, or repair of any public facility or immovable property owned, used, or
leased by a public entity. " Public entity" means and includes any political subdivision of the state,
including but not limited to any political subdivision as defined in Article VI Section 44 of the
Constitution of Louisiana. La. R. S. 38: 2211( A)( 12). There is no dispute that the City is a public
entity and that the Project was a public work project.
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The Louisiana Public Bid Law serves the dual purposes of eliminating fraud
and favoritism and securing free and unrestricted competition among bidders,
thereby avoiding undue or excessive costs. Apolinar v. Professional Construction
Services, 95- 0746 ( La. 11/ 27/ 95), 663 So. 2d 17, 18- 19. A political entity has no
authority to take any action which is inconsistent with the Louisiana Public Bid Law.
Hamp' s, 924 So.2d at 107. Louisiana Revised Statutes 38: 2212( B)( 1) provides that
the requirements and provisions of Section 2212 and those stated in the bidding
documents shall not be waived by any public entity. The Louisiana Supreme Court
has recognized that the Louisiana Public Bid Law severely curtails the discretion of
the public entity, thereby ensuring a level playing field for all bidders and a fair and
equitable means by which competing bids might be evaluated to determine the
lowest responsible and responsive bidder. LeBlanc Marine, L.L.C. v. Division of
Administration, Office of Facility Planning & Control, 2019- 0053 ( La.
10/ 22/ 19), 286 So. 3d 391, 396. One bidder cannot be provided an advantage over
another bidder due to a waiver. Gilchrist Construction Co., LLC v. East Feliciana
Parish Police Jury, 2012- 1307 ( La. App. 1st Cir. 7/ 11/ 13), 122 So. 3d 35, 39 ( citing
Hamp' s, 924 So. 2d at 110).
While Title 38 of the Revised Statutes contains the Public Bid Law, the
Louisiana Contractors Licensing Law, La. R.S. 37: 2150, et seq., also contains
requirements governing the bidding of public projects. Merrick, L.L.C. v. Airport
Authority for Airport Dist. No. 1 of Calcasieu Parish, 2019- 185 ( La. App. 3d Cir.
11/ 6/ 19), 283 So. 3d 596, 603. See Executone of Central Louisiana, Inc. v.
Hospital Service District No. 1 of Tangipahoa Parrish, 99- 2819 ( La. App. 1 st Cir.
5/ 11/ 01), 798 So. 2d 987, 993, writ denied, 2001- 1737 ( La. 9/ 28/ 01), 798 So. 2d 116Public contracts may be subject to various statutes found in Titles 37 and 38.");
La. Att' y Gen. Op. No. 04- 0030 (Mar. 12, 2004) (" Public works contracts are subject
to the contractor licensing requirements of LSA R.S. 37: 2150- 2163."). According
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to the regulations promulgated in accordance with the Louisiana Contractor' s
Licensing Law, "[ a] person licensed or registered by the board shall bid, contract,
and perform work in the name as it appears on the current license or registration and
the official records of the Licensing Board for Contractors." La. Admin. Code, Title
46, Part XXIX, § 133 ( Formerly § 109). Moreover, the work on the Project was
required to be performed by a properly licensed contractor.
In this case, the applicable license was issued by the Licensing Board for
Contractors to " Lathan Construction LLC." However, the name of bidder as
indicated on the mandatory Bid Form was " Willie Lathan." Lathan Construction,
LLC is not mentioned or identified anywhere on the Bid Form. Plaintiffs argue that
it is of no consequence that the Bid Form was submitted under the name of "Willie
Lathan" instead of " Lathan Construction, LLC" because Mr. Lathan is the sole
owner of Lathan Construction, LLC and had the authority to sign and submit the bid.
In support, plaintiffs rely on this court' s decision in Core Construction
Services, L.L.C. v. Division of Administration, Department of Facility Planning
Control, 2019- 0857, 2019- 0858 ( La. App. 1st Cir. 8/ 5/ 20), 310 So. 3d 569, writs
denied, 2020- 01088 ( La. 11/ 24/ 20), 305 So. 3d 103, 2020- 01079 ( La. 11/ 24/ 20), 305
So. 3d 105. Part of the issue in Core was whether one of the bids submitted was
nonresponsive because it failed to comply with the prohibitory law set forth in the
regulations promulgated in accordance with the Louisiana Contractor' s Licensing
Law and the name of the entity submitting the bid as stated on the bid form was
inconsistent with the certification of authority. Id. at 576.
In Core, the bid form identified the bidder as " Woodward Design + Build,
LLC, a Louisiana Limited Liability Company." However, the license issued by the
Licensing Board for Contractors was in the name of "Woodward Design + Build,
LLC." This court held that there was no violation of La. Admin. Code, Title 46, Part
XXIX, § 133, finding that there is no difference between " limited liability company"
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or " LLC" under La. R.S. 12: 1306( A)( 1)( a), and both were permissible names for
limited liability companies. In dicta, this court additionally stated that "[ e] ven if we
were to find that there is a distinction ... Woodward submitted written evidence of
authority of the person signing the bid," which authority indicated that it was
submitted on behalf of "Woodward Design + Build, LLC" and under the authority
of a vote of " Woodward Design + Build, LLC, a Louisiana Limited Liability
Company." Core, 310 So. 3d at 576- 77.
Here, the Bid Form was submitted in the name of an individual, Mr. Lathan.
Mr. Lathan is not the " person licensed or registered by the board [ who] shall bid,
contract, and perform work," as Mr. Lathan' s name does not appear on the current
license or registration and the official records of the Licensing Board for
Contractors. La. Admin. Code, Title 46, Part XXIX, § 133. Rather, Lathan
Construction, LLC, a separate juridical person, is the person so licensed by the
Licensing Board for Contractors and the only person permitted to be identified as
the bidder on the Bid Form.
Plaintiffs contend that "[ d] enying a bidder a contract because of the mere use
of the owner' s name on the bid form instead of the company' s name when both
names appear on all of the other submitted documents does not serve the purpose of
the Public Bid Law," and further conclude that they have " established evidence of
authority of the person signing the bid," referring to La. R.S. 38: 2122( B)( 5). While
plaintiffs have ostensibly established that Willie Lathan is authorized to sign a bid
on behalf of Lathan Construction, LLC, such is not determinative of the issue
presented, to wit: whether plaintiffs violated a prohibitory law by submitting a bid
in a name other than the name found in the official records of the Licensing Board
for Contractors and, if so, whether the City had any authority to ignore the violation.
We find that plaintiffs violated the applicable law in submitting a bid in the
name of "Willie Lathan," which is a name other than the name found in the official
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records of the Licensing Board for Contractors, rendering plaintiffs' bid
nonresponsive. See Merrick, 283 So. 3d at 603- 04. Acknowledging that the
Louisiana Public Bid Law severely curtails the discretion of the City, LeBlanc
Marine, 286 So. 3d at 396, the City had no authority to take any action which was
inconsistent with the Public Bid Law. Hamp' s, 924 So. 2d at 107. Therefore, we
find no error in the trial court' s denial of plaintiffs' request for a temporary
restraining order, a preliminary injunction, mandamus relief, and a declaratory
judgment, as plaintiffs bid was nonresponsive.
CONCLUSION
Based on the above and foregoing, we affirm the March 2, 2021 judgment of
the trial court in favor of the City of Gonzales, denying the temporary restraining
order, preliminary injunction, mandamus relief, and declaratory judgment requested
by plaintiffs, Willie Lathan and Lathan Construction, LLC. All costs of this
proceeding are assessed to plaintiffs, Willie Lathan and Lathan Construction, LLC.
AFFIRMED.