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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 28 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinion handed down on the 18th day of March, 2004, is as follows: BY JOHNSON, J.: 2004-CC-0211 C/W 2004-CC-0212 BROADMOOR, L.L.C. v. ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY (Parish of Orleans) For the foregoing reasons, we affirm the court of appeal's conclusion that the Authority impermissively waived the requirements regarding builders' risk insurance, attendance at pre-bid conferences, and submission of a resolution concerning the joint venture, and it abused its discretion when it selected Yates/Landis' bid as the lowest responsive bid. Accordingly, the decision to grant the preliminary injunction is affirmed, and the Authority is ordered to reject the Yates/Landis bid as non-responsive. Any application for rehearing shall be filed by the end of business on Wednesday, March 24, 2004. AFFIRMED. CALOGERO, C.J., concurs and assigns reasons. VICTORY, J., dissents for the reasons assigned by Justices Knoll and Weimer. KNOLL, J., dissents and assigns reasons and further dissents for the reasons assigned by Justice Weimer. WEIMER, J., dissents and assigns reasons.

03/18/04

SUPREME COURT OF LOUISIANA
No. 04-CC-0211 c/w 04-CC-0212 BROADMOOR, L.L.C. Versus ERNEST N. MORIAL NEW ORLEANS EXHIBITION HALL AUTHORITY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS
JOHNSON, Justice This litigation arises from a dispute over the public bids submitted for construction of Phase IV of the Ernest N. Morial Exhibition Hall. We granted this writ of certiorari to determine whether the court of appeal was correct in granting Broadmoor's application for supervisory writs, reversing the trial court's decision to deny the request for a preliminary injunction, and granting the preliminary injunction. After a careful review of the record and relevant law, we affirm the court of appeal's decision. FACTS AND PROCEDURAL HISTORY The Ernest N. Morial New Orleans Exhibit Hall Authority ("Authority"), a political subdivision of the State of Louisiana, was organized to plan, build and operate the New Orleans Convention Center.1 The Convention Center was built in

The Authority is governed by a 12-member Board of Commissioners, all appointed.
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three phases and consists of approximately 3.5 million square feet of exhibit halls, meeting rooms, ballrooms and ancillary facilities and spaces. On August 8, 2003, the Authority announced its intention to receive bids on the construction of Phase IV of the facility. The Authority received the following bids: Yates/Landis Broadmoor McDonnell/PLC $268,445,000.00 $275,000,000.00 $278,235,000.00

After the bids were opened, representatives of Sizeler Architects, L.L.C. ("Sizeler"),2 as well as staff members of the Authority, began independent evaluations of the bids. Sizeler concluded that the Yates/Landis bid was the lowest responsive bid. The bidders were also allowed to review all of the bids. On October 8, 2003, Broadmoor submitted a formal protest to the Authority concerning Yates/Landis' bid. Broadmoor noted various "irregularities, deviations and omissions" in the Yates/Landis bid, including inter alia: (1) failure to include a certificate of insurance or a letter of insurability; (2) failure to attend pre-bid meetings and failure to purchase a full size set of bidding documents; (3) failure to submit a corporate resolution of authority. On October 10, 2003, Yates/Landis responded to Broadmoor's complaint, essentially denying any irregularities, and stating that any alleged deficiencies are "minor and technical in nature." On October 15, 2003, the Construction Committee of the Authority convened to review the bids and to make a recommendation to the Authority. After hearing the presentations from the Board's staff, the architects, Broadmoor, Yates/Landis, and members of the public, the Committee decided to defer action on the bids to the full Board of Commissioners for the Authority, without making a recommendation. The

Pursuant to a professional services contract with the Authority, Sizeler prepared the bid documents, as well as the plans and specifications used during the bid process.
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Board of Commissioners met on October 22, 2003. After being informed that Senator Lambert Boissiere had requested an opinion from the Attorney General on the issue of insurance provisions within a bid and the waivability of bid requirements, the Board decided not to make a decision on the award of the contract at that time. On October 29, 2003, the Attorney General issued an opinion, concluding, "[T]he documents which set out the requirements for the phase IV of the Convention Center required all of the bidders to attach certificates of insurance or statements of insurability to the bid." The Attorney General also opined that the failure to furnish a certificate of insurance or statement of insurability is a substantive deviation from the bid requirements, which may not be waived by the Authority. Also on October 29, 2003, Broadmoor filed a petition for temporary restraining order, preliminary injunction, and permanent injunction, seeking to restrain and enjoin the Authority from considering and/or awarding the contract to Yates/Landis.3 Yates/Landis filed a petition to intervene in the action. Frischhertz/Fisk Joint Venture, Gallo Mechanical Contractors, Inc., subcontractors of Broadmoor, and Southeast Louisiana Building and Construction Trade Council also intervened in the action.

McDonnel/PCL did not file a protest to the bids. However, on January 29, 2004, after the court of appeal's decision was rendered, and while the writ applications were pending in this Court, McDonnel/PCL filed two separate proceedings, an injunction proceeding and a writ of mandamus proceeding, requesting the same relief sought by Broadmoor.
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On February 2, 2004, Broadmoor filed a motion to consolidate McDonnel/PCL's actions with this litigation and a motion to stay those proceedings pending disposition by this Court. Alternatively, Broadmoor requested a continuance of the hearing dates for the McDonnel/PCL proceedings to permit limited discovery. The trial court granted Broadmoor's motion to consolidate and motion to stay. A contradictory hearing was set for February 4, 2004. Subsequently, Broadmoor, the Authority, McDonnel/PCL, and Yates/Landis filed a joint motion to consolidate the McDonnel/PCL matter with this action and stay all proceedings, pending disposition of the instant matter.
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Initially, the trial court granted the temporary restraining order. However, following a contradictory hearing, the trial court rescinded the order. Thereafter, the Authority accepted the bid of Yates/Landis as being the lowest responsive and responsible bid and sent Yates/Landis a notice of acceptance. On November 3, 2003, the trial court held a hearing on Broadmoor's request for a preliminary injunction. Following the hearing, the trial court denied the request, stating: The insurance issue bothers me greatly. The requirement is that the certificate of insurance or the document of insurability should have been submitted. But I cannot say in light of the [American Institute of Architects] requirements that the Board was wrong in its conclusion. They were not arbitrary. They may have been wrong, but they were not arbitrary. So much for the insurance. All the other arguments are non-substantial. Broadmoor filed an application for supervisory writs in the court of appeal.4 The court of appeal granted Broadmoor's writ application, reversed the trial court's ruling, granted the request for the preliminary injunction, and ordered the Authority to reject Yates/Landis bid as non-responsive. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 03-1996 (La.App. 4 Cir. 12/22/03), ___ So.2d ___. The court of appeal concluded: (1) the Authority acted arbitrarily and

capriciously in accepting the bid from Yates/Landis due to the failure to provide a certificate of insurance or letter of insurability regarding builder's risk insurance, which constituted a non-waivable substantive deviation from the bid requirements; (2) Yates/Landis' failure to attend the mandatory pre-bid conferences prior to bidding precluded it from being considered a qualified responsive bidder; (3) Yates/Landis' bid was not responsive due to its failure to submit a resolution of authority for the

The interveners filed a briefs in support of Broadmoor's application for supervisory writs. The Louisiana Associated General Contractors, Inc. filed an amicus curiae brief in the court of appeal.
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joint venture. Yates/Landis and the Authority both filed applications for writ of certiorari.5 We granted both writ applications and consolidated the matters. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211, 04-0212 (La. 2/11/04), ___ So.2d ___. DISCUSSION The primary purpose of injunctive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant. LSA-C.C.P. art. 3601. During the pendency of an action for an injunction, the court may issue a temporary restraining order, a preliminary injunction or both. Arco Oil & Gas Co. v. DeShazer, 98-1487 (La. 1/20/99), 728 So.2d 841. A preliminary injunction may be granted pending trial on merits of a permanent injunction in order to preserve preexisting status of parties. Metro Riverboat Associates, Inc. v. Bally's Louisiana, Inc., 97-1672 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, writ denied 1998-0679 (La. 5/29/98) 720 So.2d 339. The purpose of a preliminary injunction is to preserve status quo until trial on merits; on the other hand, a permanent injunction can be issued only after full trial on merits in which burden of proof is by preponderance of evidence. Louisiana Gaming Corp. v. Jerry's Package Store, Inc., 629 So.2d 479 (La.App. 3 Cir. 1993).6 It is well settled under Louisiana law that the judicial branch may not ordinarily

The aforementioned intervenors also filed a briefs in this Court. The Louisiana Associated General Contractors, Inc. filed an amicus brief in support of Broadmoor's writ application in this Court. The Greater New Orleans Hotel and Lodging Association, the Louisiana Municipal Association, and the New Orleans Metropolitan Convention and Visitors Bureau, Inc. filed amicus briefs in support of the Authority and Yates/Landis' position.
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In this case, the trial court held a show cause hearing and ruled on the petition for a preliminary injunction. There is nothing in the record to indicate that a trial has been held on the permanent injunction.
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enjoin a municipal body from acting under the guise of its legislative powers. LA. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., 586 So.2d 1354, 1357 (La. 1991). However, where the threatened action of a municipal body is "in direct violation of a prohibitory law" a court of equity may enjoin the threatened action. Id. Thus, we must determine whether the Authority's action in accepting the Yates/Landis bid as the lowest responsive bid directly violated a prohibitory law. Louisiana's Public Bid Law, set forth in LSA-R.S. 38:2212 et seq., is a prohibitory law founded on public policy. LA. Associated Gen. Contr., Inc., 586 So.2d at 1359; Haughton Elevator Div. v. State Division of Administration, 367 So.2d 1161 (La. 1979). Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions. The statute was enacted in the interest of the taxpaying citizens and has for its purpose the protecting of them against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices. Id. A political entity has no authority to take any action which is inconsistent with the Public Bid Law. Id. at 1362. As set forth in Acts 1977, No. 103,

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