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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 9 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 22nd day of February, 2006 , are as follows:

BY VICTORY, J. : 2005-C -0489 HAMP'S CONSTRUCTION, Orleans) L.L.C. v. THE CITY OF NEW ORLEANS (Parish of

Judge Fred Sexton, sitting ad hoc for Johnson, J., recused. For the reasons stated herein, the judgment of the court of appeal is affirmed. AFFIRMED. KNOLL, J., additionally concurs with reasons.

02/22/2006

SUPREME COURT OF LOUISIANA
No. 2005-C-0489 HAMP'S CONSTRUCTION, L.L.C. VERSUS THE CITY OF NEW ORLEANS ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

VICTORY, J.* This writ presents the legal issue of whether a public entity, here, the City of New Orleans ("the City"), may permissibly waive any of the requirements stated in the Public Bid Law, La. R.S. 38:2211, et seq., the advertisement for bids or the bid form under La. R.S. 38:2212A(1)(b). After reviewing the record and the applicable law, we affirm the judgment of the court of appeal and hold that requirements contained in the Public Bid Law and in a pubic entity's bid requirements may not be waived. FACTS AND PROCEDURAL HISTORY On October 26, 2003, the City invited bids under Proposal F-4625 seeking specific demolition work at Lincoln Beach Landside Structures. The Invitation to Bid stated that the City would award the anticipated contract "in conformity with the [City's] purchasing policy and the additional requirements of the State [Public Bid] Statute, title 38:2212A." The City issued the Invitation to Bid as a seven-page package, which contained the following documents: (1) Instruction to Bidders and General Conditions; (2) Invitation to Bid, with deadlines and bond requirements; (3) general project description; (4) Minority and Women Owned Business Participation

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Judge Fred Sexton, sitting ad hoc for Johnson, J., recused.

statement; and (5) Statements regarding Non-Discrimination and Jurisdiction and Venue of City Contracts. As provided in the Invitation to Bid, bidders were invited to submit their proposals on the forms provided, including the necessary referenced attachments. A bid form (entitled "Section 00300" of Addendum No. 2) was required for the separate project specifications, which included spaces for detailed bids. The form contained the following provisions: FORM OF PROPOSAL A. INTRODUCTION Two copies of this form, which is the Bidder's proposal are to be completed, signed, and delivered to Purchasing Agent, Bureau of Purchasing, City of New Orleans, City Hall, Room 4W02, New Orleans, Louisiana, prior to the bid time specified in the City of New Orleans Invitation to Bid. General Contractors submitting a bid must complete this form and attach to one of the copies the executed non-collusion affidavit, bid bond form, a copy of the City's Invitation to Bid issued for this project, and a bond or cashier's check as indicated, in order to constitute a complete bid proposal. (Emphasis added.) The Invitation to Bid also stated that "[t]he Department of Finance, Bureau of Purchasing, reserves the right to reject any and all bids and to waive any informalities." Additionally, the Invitation to Bid required that "[w]henever

specifications are included in any bid proposal, all bidders must comply with these specifications. Any deviations from such specifications must be detailed and fully explained by bidder in writing as a part of bid submitted." The City received six timely bids on both the base and alternate proposal. The Department opened and reviewed the bids on November 12, 2003. Hamp's

Construction L.L.C. ("Hamp's") submitted the lowest bid on the base proposal and the second lowest bid on the alternate proposal. Concrete Busters of Louisiana, Inc. ("Concrete Busters") submitted the lowest bid on the alternate proposal. After viewing the bids, the City decided to proceed with the alternate proposal and selected the lowest bidder, Concrete Busters, to perform the work.
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Subsequently, Hamp's filed a letter of formal protest regarding the City's choice to award the contract to Concrete Busters. The protest was denied. Hamp's then sought injunctive relief to prevent the City from awarding the contract to Concrete Busters. Simultaneously, Hamp's filed a petition for mandamus to compel the City to award the contract to Hamp's as the lowest responsible bidder. A temporary restraining order was issued and the matter was set for hearing. The case was heard on January 15, 2004, resulting in a February 19, 2004, judgment in favor of the City wherein the trial court held: The thrust of plaintiff's argument is that Concrete Busters . . . , the lowest responsible bidder on the contract at issue, failed to comply with the bid specifications because it failed to include a copy of the City's Invitation to Bid with its proposal. Exhibits by the City and Concrete Busters establish that although Hamp's lodged a formal written protest regarding Concrete Busters' bid, it withdrew its protest.1 Notwithstanding, the City rejected Hamp's bid protest on the grounds that Concrete Busters complied with all substantive formalities. The Court agrees finding that Concrete Busters complied with the substantive formalities as set forth in the bid requirement, and was the lowest responsible bidder to which the job should have been awarded. Wallace C. Drennan v. Sewerage and Water Board of New Orleans, 798 So. 2d 1167 (La. App. 4 Cir. 2001). The court of appeal reversed and remanded the matter for a determination of damages, ruling that "when a public entity elects to place certain requirements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date." Hamp's Construction, L.L.C. v. The City of New Orleans, 04-802 (La. App. 4 Cir. 2/2/05), 893 So. 2d 1040. Because Section A of Specification Section 0030 required that a copy of the City's Invitation to Bid be attached to the bid submitted and Concrete Busters did not do so, Concrete Busters'

Contrary to the wording of the trial court's judgment, the record reflects that Hamp's did not withdraw its protest; instead Concrete Busters withdrew its formal written protest regarding Hamp's bid after being awarded the contract. 3

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bid was not responsive. We granted the City's writ. Hamp's Construction, L.L.C. v. The City of New Orleans, 05-489 (La. 4/29/05), 901 So. 2d 1045. DISCUSSION The City argues that the only issue on appeal is the factual issue of whether Concrete Busters' failure to attach the Invitation to Bid along with its proposal, as instructed by the City's bid form, constituted a substantive, non-waivable, deviation. Hamp's argues that whether Concrete Busters' failure to attach the Invitation to Bid was a substantive deviation or an insignificant deviation is irrelevant because, as a matter of law, the City is unable to waive any deviation from its bid requirements under La. R.S. 38:2212A(1)(b). "Louisiana's Public Bid Law, set forth in La. R.S. 38:221[1], et seq., is a prohibitory law founded on public policy." Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 04-0211 (La. 3/18/04), 867 So. 2d 651, 656; La. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., 586 So. 2d 1354, 1359 (La. 1991). "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." Id. "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. La. R.S. 33:2212A(1)(b), as amended by Acts 2001, No. 1106,

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