Gibson & Associates, Inc. VS State of Louisiana Department of Transportation & Development
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1696 GIBSON ASSOCIATES INC VERSUS STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION DEVELOPMENT Judgment Rendered n t 1 Y MAY 1 8 2011 Appealed from the Nineteenth Judicial District Court r In and for the Parish of East Baton Rouge Louisiana Docket Number 591 175 Honorable Todd Hernandez Judge Presiding Russel W Counsel for Plaintiffs Appellees Wray Gibson Lani B Durio Baton Rouge LA Associates Inc and Counsel for Amicus Curiae Louisiana Associated General Contractors Inc Darhlene M Baton Major Rouge Counsel for Defendant Appellant Louisiana Department of Transportation Development LA Kevin P Landreneau Baton Rouge LA Counsel for Intervenor Appellee Lamplighter Construction L C BEFORE WHIPPLE McDONALD AND McCLENDON JJ e 6yu tE t G o o FE Gz O a r WHIPPLE J In this appeal the Louisiana Department of Transportation and Development hereinafter referred to as the DOTD challenges the trial s court judgment that 1 issued a preliminary injunction restraining and prohibiting the DOTD from awarding a particular constnzction contract to any bidder other than plaintiff Gibson Associates Ina refened to herein as Gibson and 2 issued a writ of mandamus directing the DOTD to award the contract for the projects at issue to Gibson as the low responsible bidder and to execute a contract with Gibson in accordance with the bid proposal and the contract plans and specifications as advertised The intervenor Lamplighter Construction L referred to herein C as Lamplighter answered the appeal aligning itself with and adopting the position taken by the DOTD For the following reasons we amend in part and affirm as amended reverse in part and remand and deny Gibson motion to strike brief s FACT5 AND PROCEDURAL HISTORY This matter involves the awarding of a DOTD construction contract on State Project Nos 450 and 452 for bridge joint repairs 0089 07 0055 92 and replacements on Interstates 10 and 110 in East Baton Rouge and Iberville Parishes compliance with Because the project was a federal aid project the required contract provisions for We note that the judgment on appeal herein incorrectly lists the State Project Number as 450 instead of 450 0098 07 0089 07 2 a Disadvantaged Business Enterprise DBE was mandatory Thus the Construction Proposal included the Required Contract Provisions for DBE Participation in Federal Aid Construction Contracts DBE Goal Project which provided that Form CS the Bidder Assurance of DBE 6AAA s Participation form and attachments shall be timely submitted to the DOTD and that the apparent low bidder failure to submit the Form CS s 6AAA shall constitute just cause for the rejection ofthe bid On January 27 2010 the project was first let and the apparent low bidder was TOPCOR Services Ina TOPCOR Services which was thereafter notified that its completed Form CS must be submitted 6AAA within ten days of the letting date However TOPCOR Services did not timely submit to the DOTD the required CS thus resulting in its 6AAA disqualification Moreover because of its failure to comply with the requirements of the DBE regulations TOPCOR Services was barred from rebidding on the project should the project be re advertised Gibson was the next lowest bidder but the DOTD did not accept its bid Instead the DOTD rejected all other bids and re the project advertised A z disadvantaged business enterprise or DBE is defined in the Code of Federal Regulations as a for small business concern that is at least 51 owned by one or profit more individuals who aze both socially and economically disadvantaged or in the case of a corporation in which 51 of the stock is owned by one or more such individuals and whose management and daily business operations aze controlled by one or more of the socially and economically disadvantaged individuals who own it 49 C 26 R F5 Socially and economically disadvantaged individual include but aze not limited to s Black Americans Hispanic Americans Native Americans Asian Americans Pacific Subcontinent Asian Americans and women 49 C 26 Some of the stated R F5 objectives of the DBE provisions include 1 ensuring nondiscrimination in the awazd and administration of U Department of Transportation DOT contracts in S assisted the DOT shighway transit and airport financial assistance programs 2 creating a level playing field on which DBEs can compete fairly for DOT contracts and 3 assisted removing barriers to the participation of DBEs in DOT contracts 49 C assisted R F a 1 26 b e 3 in the spring of 2010 with a letting date of April 14 2010 When the bids were opened on April 14 2010 Lamplighter Construction L C Lamplighter was the apparent low bidder However the DOTD project control administrator was then notified that Lamplighter should be disqualified from bidding because it and the previously disqualified TOPCOR Services were possibly affiliated entities or controlled or owned by the same individuals The DOTD then researched any connections between the companies through the Louisiana Secretary of State website and the Louisiana Contractors Licensing Board filings Based on this independent research the project control administrator determined that a principal officer or owner of Lamplighter was also a principal officer ar owner of TOPCOR Services the original apparent low bidder which was disqualified from bidding Thus the DOTD concluded that Lamplighter was also ineligible to bid and its bid would be rejected as irregular in accordance with Louisiana Standard Specifications for Roads and Bridges Specification 102 Accordingly Lamplighter was then g 08 listed as irregular on the bid tabulation and Gibson which had again been the second lowest bidder became the apparent low bidder Lamplighter then protested the DOTD determination that its bid s should be considered irregular asserting that it was aand separate distinct contracting entity from Services TOPCOR Following a review of documentation submitted by Lampiighter in support of its protest the Pursuant 3 to Standard Specification g 08 102 a bid may be considered inegular if an owner or principal officer of the bidding entity is an owner or principal officer of a contracting entity which has been declared to be ineligible to bid by the DOTD No protest heazing was held and contrary to the protest procedure set forth in the DBE provisions made a part of the Conshuction Proposal herein Gibson Associates was not notified that Lamplighter had filed a protest 4 DOTD chief engineer determined that Lamplighter should be reinstated as the low bidder and awarded the contract After the DOTD made its decision to reinstate Lamplighter as the low bidder it notified Gibson that its status had again changed to second low bidder Gibson then filed a protest of the DOTD decision to reinstate s Lamplighter as the low bidder Following a hearing on Gibson protest the s DOTD chief engineer notified Gibson by letter dated May 27 2010 that he had reaffirmed his prior decision to reinstate Lamplighter as the apparent low bidder for the project at issue T following day the DOTD notified he Lamplighter that it had been awarded the contract On the same day that Lamplighter was notified that it had been awarded the contract May 28 2010 Gibson filed a petition for a temporary restraining order preliminary injunction permanent injunction declaratory judgment and mandamus Through its petition Gibson sought to enjoin the DOTD from awarding and executing the construction contract to any bidder other than Gibson It further sought a declaratory judgment declaring 1 that the bid submitted by Lamplighter is irregular pursuant to Standard Specification 102 2 that pursuant to LSA 48 et s g 08 S R 250 s Lamplighter bid must be rejected 3 that any contract entered into by the DOTD with Lamplighter is null and void and 4 that Gibson is the low responsible bidder to bid according to the contract plans and specifications and as such is entitled to be awarded the project Finally Gibson sought a writ of mandamus ordering the DOTD to accept Gibsods bid and execute the contract with Gibson for the construction of this project A TRO was issued that day prohibiting the DOTD from awarding the contract to any bidder other than Gibson or if the contract had been awarded from implementing or executing the terms and conditions of any 5 such contract and a hearing on Gibsods request for a preliminary injunction was set for June 15 2010 The TRO was subsequently continued in full force and effect by order dafed June 7 2010 In response to Gibson petition the DOTD filed exceptions of s nonjoinder of an indispensable party i Lamplighter and improper use of e summary proceedings an answer and a reconventional demand for dissolution of the TRO damages for its wrongful issuance and attorney s fees At the June 15 2010 hearing the trial court considered and denied the exceptions filed by the DOTD Lamplighter then orally intervened for purposes of opposing the injunctive relief requested At the conclusion of the hearing the trial court extended the TRO and took the matter of the preliminary injunction under advisement The TRO was again extended on June 24 2010 Thereafter on June 25 2010 the trial court issued written reasons for judgment finding that TOPCOR Services and Lamplighter have a principal officer and owner in common and thus that the plain language of or Standard Specification 102 gmandated a finding that Lamplighter was 08 ineligible to bid Accordingly the trial court rendered judgment 1 issuing a preliminary injunction prohibiting the DOTD from awarding the construction contract to any bidder other than Gibson or in the event the contract had been awarded from performing or executing the terms thereof In S an applica6on for supervisory writs filed with this court the DOTD challenged in part the trial court denial of its exception of nonjoinder of a party This s court granted the DOTD swrit application in that respect ocdering that t July 12 he 2010 judgment insofar as it overrules the DOTD peremptory exception of nonjoinder s of a party which seeks to add Lamplighter Construction LLC as a party to the suit is reversed and the peremptory exception of nonjoinder of a party is sustained adding Lamplighter Construction LLC as a party to the suit Gibson Associates Inc v State of Louisiana Department of Transportation and Development 2010 CW 1207 La App l Cir 9 10 27 6 and 2 issuing a writ of mandamus directing the DOTD to award the contract to Gibson as the low responsible bidder and to execute a contract with Gibson in accordance with the bid proposal and the contract plans and specifications From this judgment the DOTD appeals contending that the trial court erred 1 In ordering the issuance of a preliminary injunction where no prima facie showing was made of either irreparable harm to Gibson or a direct violation of the Public Bid Law 2 in applying Standard Specification g 08 102 to the lowest bidder on the project contrary to the clear language of the specification and contrary to the discretionary authority of the DOTD to interpret its specification and administer the bid process as mandated by LSA S R 255 48 3 in finding that Lamplighter bid was irregular pursuant to s Standard Specification 102 g 08 4 in substituting its judgment for the DOTD good faith s determinarion interpreting and applying its specifications within the conte of the applicable Public Bid Law 5 in ordering the issuance of a writ of mandamus directing the DOTD to award the contract to and execute a contract with Gibson the second lowest bidder in contravention of LSA 48 and S B R 255 b 5 6 in failing to find the TRO issued in the proceeding below was wrongfully issued failing to dissolve same and failing to award damages and attomey fees to the DOTD pursuant to LSA art 3608 for the s P C wrongful issuance of the TRO 7 Lamplighter filed an answer to the appeal adopting the assignments of set error forth by the DOTD Additionally Louisiana Associated General Contractors Inc has filed an amicus curiae brief in this matter setting forth its position as to why the trial court judgment should be s affirmed Also befare this court is a motion filed by Gibson to strike s Lamplighter appellate brief We elect to address this motion first MOTION TO STRIKE LAMPLIGHTER APPELLATE BRIEF S In support of its motion to strike Lamplighter sappellate brief Gibson advances two arguments 1 that Lamplighter did not properly file an answer to the DOTD appeal and alternatively 2 that tlu its answer s ough to the appeal Lamplighter improperly seeks to challenge the judgment rendered in favor of a party that is not an appellant i Gibson e With regard to its assertion that Lamplighter did not properly file an answer to the s DOTD appeal Gibson contends that Lamplighter filed its answer in separate proceedings involving a writ application filed by the DOTD under docket number 2010 not in this appeal proceeding Thus Gibson 1207 CW contends because Lamplighter did not answer the instant appeal its appellate brief which opposes the trial court judgment should be stricken s in accordance with Uniform Rules of Appeal Rules 2 and 2 Courts 4 7 Incorporated in 6 its answer is a request by Lamplighter that it be designated as an appellant because it is aligned with the DOTD in this appeal However there are different and distinct time delays and other requirements for the filing of an appeal and an answer to an First Circuit is more appeal P C LSA arts 2087 I Rules 1 limited in ALoca1 Rules of Appeal 2133 ourt 5 1 Moreover an answer to an appeal is not equivalent to and scope than an appeal See LSA arts 2082 P C 2133 Accordingly because Lamplighter chose to answer the DOTD appeal rather than file s iYs own appeal it is not an appellant herein See Foster v Unopened Succession of Smith 38 La App 2 Cir 5 874 So 2d 400 404 writ denied 2004 386 04 20 1547 La 11 885 So 2d 1137 04 8 8 13 12 However we note that while the caption of Lamplighter answer s incorrectly listed the docket number for the related writ application filed by the DOTD that clerical error was corrected at the time of filing and the answer to the appeal was in fact filed under the docket number of the s DOTD appeal herein Accordingly we find no merit to this argument Gibson further asserts that an answer to an appeal does not have effect with respect to any portion of the judgment in favor of a party that has not appealed Thus it contends because Lamplighter improperly requests reversal of the judgment rendered in favor of Gibson a party herein which has not appealed the judgment in its favor Lamplighter sappellate brief should be stricken Louisiana Code of Civil Procedure article 2133 provides that t he answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer Emphasis added The jurisprudence has held that pursuant to this provision an answer does not have the effect ofan appeal as to any portion ofthe judgment rendered either in favor of or against a party who has not appealed Francois v Ybarzabal 483 So 2d 602 605 La 1986 However P C LSA art 2133 further provides as follows Additionally however an appellee may by answer to the appeal demand modification revision or reversal ofthe judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court Uniform Rules of Appeal Rule 2 provides that the court may Courts 4 7 summarily dismiss motions and pleadings that are untimely or improperly ffied Rule 2 13 12 states that b not in compliance with these Rules may be stricken in whole or riefs in part by the court and the delinquent paRy or counsel of record may be ordered to file a new or amended brief 9 emphasis added Incidental actions include reconventional demands claims cross interventions and third demands LSA art 1031 party P C In the instant case Lamplighter intervened in the proceedings below seeking to protect its interest in the award of the construction contract at issue Clearly in rendering judgment granting a preliminary injunction and writ of mandamus the trial court did not allow the relief prayed for by s Lamplighter incidental action i Lamplighter interest in having the es court uphold the DOTD actions in reinstating Lamplighter as the lowest s responsible bidder and awarding the contract to Lamplighter Thus sinterest in and right to seek such relief in an answer to the Lamplighter appeal is clearly allowed by LSA art 2133 See Notto v Brown 509 P C So 2d 788 789 La App l Cir 1987 Accordingly we deny Gibson motion to strike Lamplighter s s appellate brief DISCUSSION Proprietv of the PreliminarY Iniunction Assignments of Error Nos 1 4 In its petition filed below Gibson contended that in the re of letting this project the bid of Lamplighter was irregular and thus should have been rejected by the DOTD given Lamplighter sconnections with the previously disqualified bidder TOPCOR Services The trial court agreed and granted a preliminary injunction prohibiting the DOTD from awarding the contract at issue to Lamplighter or any bidder other than Gibson In its first four assignments of error the DOTD challenges the trial s court granting of a preliminary injunction and its findings underlying the Moreover B as stated above in footnote 4 by order dated September 27 2010 this court maintained the DOTD speremptory exception of nonjoinder of a party and ordered Lamplighter added as a party to the suit 10 grant of the injunction Specifically in its first assignment of error the DOTD contends that Gibson failed to make a prima facie showing of irreparable harm absent injunctive relief or of a direct violation ofthe Public Bid Law Thus the DOTD contends that the preliminary injunction was inappropriate In its second and third assignments of error the DOTD contends that the trial court erred in its interpretation of Specification gas being applicable to Lamplighter and thus in concluding that 08 102 s Lamplighter bid was irregular and should have been rejected by the DOTD Additionally in assignments of error two and four the DOTD contends that because it interpreted and applied the specifications at issue herein in good faith the trial court ened in failing to recognize the discretionary authority of the DOTD in interpreting its specifications and in substituting its own judgment for that of the DOTD s Louisiana Public Bid Law as set forth in LSA 38 l et se S R221 c is a prohibitory law founded on public policy Hamp Construction s C L v Cit of New Orleans 2005 La 2 924 So 2d 104 0489 06 22 107 The Public Bid Law was enacted in the interest of the taxpaying citizens and its purpose is to protect citizens against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices s Hamp Construction L 924 So 2d at 107 C A The 9 Public Bid Law applies to public entities of the state of Louisiana LSA S R 382212 Public entity is defined in the Public Bid Law to include any agency board commission department or public corporation of the state S R LSA 11 A 2211 38 Thus while LSA 48250 et s specifically govems the bidding S R and award process for public construction projecfs let by the DOTD the provisions of the Public Bid Law LSA 382211 et s also apply to Yhe DOTD to the extent that they S R do not conflict with LSA 48250 et seq See LSA 48 see also M S R S R250 G P Construction Inc v Deparhnent of TransporCation and Development 2003 La 0164 App l Cic 4 878 So 2d 624 writ denied 2004 La 6 876 So 2d 85 04 2 0975 04 4 and Diamond B Construction Companv Inc v Louisiana Departrnent of Transportation and Development 2000 La App l Cir 12 780 So 2d 439 writ denied 1583 00 22 0246 2001 La 4 790 So 2d 633 applying provisions of the Public Bid Law to O1 20 contracts let by the DOTD 11 political entity has no authority to take any action which is inconsistent with the Public Bid Law Broadmoor L v Ernest N Morial New Orleans C Exhibition Hall Authority 2004 La 3 867 So 2d 651 656 02ll 04 18 In that regard LSA 38 provides that t provisions SA R 2212 i b 1 he and requirement this Section those stated in the advertisement for bids sof and those required on the bid form shall not be waived by any entity Moreover in addition to the laws of the state relating generally to obligations and the department not in conflict with this Part LSA S R 48250 et s specificaliy governs the bidding and award process for public construction projects let by the DOTD Angelo lafrate Construction C L v State Department of Trans and Development 2001 ortation 2761 La App l Cir 5 818 So 2d 973 976 writ denied 2002 La 02 10 2142 02 8 11 828 So 2d 1125 As to bidding requirements for public construction contracts and conformity therewith LSA 48255 S R Aprovides as follows The department shall establish specific bidding requirements in accordance with the provisions of this Part provisions of the Federal Highway Administration if applicable and other provisions as necessary and will include these requirements in the project specifications and bid package issued to prospective bidders Bids of prospective bidders shall conform to accordance these requirements with this Bids Subpart or such not submitted other in specified requirements are irregular and must be rejected by the deparhnent Accordingly based on the plain language of LSA 48 the bids of S R 255 prospective bidders shall conform to the requirements of the bid proposal and project specifications Otherwise a bid not conforming to those requirements is irregular and must be rejected by the DOTD Angelo Iafrate Construction L 818 So 2d at 977 C 12 Where the threatened action of a public body is in direct violation of a prohibitory law the plaintiff may seek injunctive relief to enjoin that threatened action without a showing of irreparable injury Louisiana Associated General Contractors lnc v Calcasieu Parish School Board 586 So 2d 1354 1359 La 1991 see also M Construction Inc v G P Department of Trans and Development 2003 La App 1 St ortation 0164 Cir 4 878 So 2d 624 629 writ denied 2004 La 6 876 04 2 0975 04 4 So 2d 85 and Chandler v State Department of Transportation and Development 2002 La App 1 Cir 3 844 So 2d 905 909 1410 03 28 At the hearing on the preliminary injunction below Gibson did not offer any evidence that it would suffer irreparable injury if the trial court did not grant the preliminary injunction Thus to prove its entitlement to a preliminary injunction Gibson had the burden of establishing that the DOTD actions in s reinstating Lamplighter as the low bidder was a direct violation of a prohibitory law i Public Bid Law e the As set forth above because the project at issue was a federal aid construction project the DBE participation provisions as established in 49 R F C Part 26 were mandatory Accordingly the DBE provisions were incorporated into the construction proposal These provisions set forth that the bidder shall submit the Form CS by the due date set forth in the 6AAA apparent bid results and the bid results posted on the DOTD website s Addirionally section G of the DBE provisions in the construction 6 proposal states as follows An apparent low bidder failure neglect or refusal to s submit Fortn CS and attachments committing to meet ar 6AAA exceed the DBE goal and documentation of good faith or efforts shall constitute just cause for farfeiture of the proposal guarantee and the DOTD rejecting the bid pursuing award to the next lowest bidder or re the project advertising 13 The apparent low bidder will not be allowed to bid on the project should readvertisement occur Emphasis added Based on this provision TOPCOR Services was disqualified and barred from rebidding on the project when it did not timely submit to the DOTD the required Form CS 6AAA Moreover with regard to the re ofthis project the construction letting proposal specifically provides that b must be prepared and submitted in ids accordance with Section 102 of the 2006 Louisiana Standard Specfcations for Roads and Bridges the Standard Specifications as amended by the project specifications and must include all information required by the proposal Standard Specification 102 gprovides that b may be 08 ids considered irregular and non and will be subject to rejection responsive f i an owner or a principal officer of the bidding entity is an owner or a s principal officer of a contracting entity which has been declared by the s DOTD to be ineligible to bid The evidence and testimony presented at the hearing on Gibson s request for a preliminary injunction established that the sole shareholder owner of TOPCOR Services is TOPCOR Companies L which entity C also owns 29 of Lamplighter Moreover the president and secretary of TOPCOR Services is James Baker who is also the secretary of treasurer Lamplighter Clearly TOPCOR Services and Lamplighter not only shared a common owner TOPCOR Companies Lbut also shared a common C TOPCOR 10 Companies L is in turn owned by James Baker its sole C member Additionally we note that the qualifying party through the Louisiana sLicensing Board for boYh companies is James Baker Indeed with Baker as Contractor its qualifying party Lamplighter first obtained its commercial contractor license in s Louisiana on March 25 2010 after its affiliated entity TOPCOR Services had been disqualified from bidding on the project at issue Moreover based on their registration with the Secretary of State both companies have the same address listed on Industriplex Boulevard in Baton Rouge and James Baker is also the registered agent for both companies 14 principal officer James Baker Thus the legal question presented in this matter is whether TOPCOR Services ineligibility to rebid on the project at s issue given its disqualification in the original bid letting and the prohibition against its bidding on any re is imputed to Lamplighter and renders it letting ineligible pursuant to Standard Specification 102 given that the two g 08 companies share a common owner and a common principal officer While the DOTD acknowledged below that it had initially ruled s Lamplighter bid to be ineligible pursuant to Standard Specification gbased on the common ownership interests and principal officer 08 102 between Lamplighter and the previously disqualified TOPCOR Services on appeal the DOTD now argues that Standard Specification 102 gdoes 08 not operate to disqualify Lamplighter thus rendering the DOTD initial s determination incorrect Specifically the DOTD contends that the proper interpretation of the term contracting entity in Standard Specification gbids may be considered irregular and will be subject to rejection 08 102 where an owner or principal officer of the bidding entity is an owner or principal officer of aentity which has been declared ineligible contracting to bid renders that specification inapplicable to Lamplighter herein While acknowledging that the term contracting entity is not defined in the Standard Specifications the DOTD asserts that the purpose of Standard Specification 102 is to prevent contractars which have been g 08 previously disqualified under Specification 108 from bidding on future 04 contracts Thus it contends that this court should look to the definition of contracY contained in the Standard Specifications which is defined as Interestingly 1z in the trial court below the DOTD azgued that the term contracting entity in Standard Specification 102 really meant contractor as g 08 defined in the Standazd Specifications which it interpreted to mean an entity that had been previausly awarded a contract with the DOTD Thus it further argued that a bidder would not yet be a that Standard Specification 102 contractor and gonly applied 08 15 the written agreement between the DOTD and the contractor and should consequently conclude that a entity as stated in Standard contracting Specification 102 gmust be understood to refer only to an entity that 08 already has had a written agreement or contract with the DOTD and has been disqualified from bidding pursuant to that previous contract rather than referring to all bidding entities seeking a contract with the DOTD3 Accordingly urging this proposed interpretation of the Standard Specifications the DOTD contends that TOPCOR Services was not a disqualified contractor presumably on the basis of not having been disqualified under a prior contract with the DOTD as a result of the progress on its work under such previous contract falling behind the elapsed contract time and thus was not a entity which had been declared by contracting the DOTD to be ineligible to bid under the provisions of Standard Specification 102 Consequently the DOTD in essence contends that g 08 the fact that Lamplighter shares a common owner and principal officer with TOPCOR Services is of no consequence given that TOPCOR Services is not a entity within its interpretation of Standard Specification contracting g 08 102 On review we find no merit to the DOTD strained and convoluted s interpretation of Standard Specification 102 At the outset we note g 08 where there was a contractor that had been disqualified from bidding on any job due to its performance under such previous contract However in its appellate brief the DOTD acknowledges that the term contractor is defined at one point within the Title 48 provisions applying to the DOTD specifically in LSA 482951 addressing debarment to include bidders or S R contractors on projects let pursuant to R 48251 et seq Emphasis added Thus the S DOTD concedes that the term contracting entiry in Standard Specification 102 g 08 would apply to debarred entities even though those entities had never previously contracted with the DOTD Standazd t3 Specification 108 addresses the prosecution of the work within the 04 contract time and provides for a work disqualification i disqualification of a progress e contractor whose progress on the work falls behind the elapsed contract time 16 that the term contracting entity connotes present tense yet the DOTD seeks to have this court interpret that phrase as applying only to entities that had contracted with the DOTD in the Moreover at the time past OPCOR T Services was disqualified after the initial letting znd deemed ineligible to bid at the re ofthis project it had already been awarded letting the contract at issue by the DOTD Thus as af the time of the award OPCOR Services was c consi for all intents and purposes to be early ered the contracting entity with regard to this project Accordingly we cannoY accept the strained analysis asserted by the I30TD and urged ta support a conclusion that TOPCOR Services was not aentity herein eontracting determined to be ineligible to bid at the re letting Moreover we find no merit to t DOTD atLempt Yo limit Standard s Specification 102 entitles previously disqualified from bidding on gto 08 future projects under Standard Specification 08 despite the absence of 04 any language to this effect in Standard Specification 102 limiting its g 08 application to entities disqualified in such a manner Rather the language of 102 specifically applies to entities declared g 08 ineligible Emphasis a Indeed there are numerous reasons for ded which an entity will be disqualified and thus ineligible to bid including inter alia 1 application of Standard Specification 103 for failure to 07 comply with the provisions of Standard Specification 103 regarding 06 execution and approval of the contract 2 application of Standard Specifications 108 for detay in progression of the wark on a construction 04 project with the DOTD 3 application of section G of the DBE 6 provisions applicable to the instant contract for failure to timely submit advancing this argument the DOTd then concedes as noted in footnote 11 supra that Standard Specification 102 would also have to apply to debarred g 08 entities even if such entities had never previously been awarded a contract by the BOTD 17 required documentation and 4 application of LSA 48 and S 1 R 295 2 295 48 addressing debarment Thus we likewise find no merit to the s DOTD attempt to substitute the more restrictive phrase disqualified under Specification 108 for the term ineligible the term actually 04 contained in the language of Standard Specification 102 support its gto 08 strained interpretation of this specification Finally we note that the interpretation set forth by the DOTD does not further the policy purposes behind the Public Bid Law As stated above the purpose of the Public Bid Law is to protect Louisiana t s paying citizens against contracts of public officials entered into because of favoritism or involving extortionate prices Hamp Construction L 924 So 2d at s C 107 Under the interpretation of coniracting entity proposed by the DOTD owners or principal officers of an entity ineligible to bid could simply create a new corporation or limited liability company owned and ar controlled by the same owners or principal officers of the ineligible entity and that new entity would be eligible to bid when the project was rebid simply because it being aentity had never before contracted with the new DOTD and thus in the DOTD view was not a s contracting entity Accordingly we conclude that TOPCOR Services was a contracting entity declared ineligible to bid at the re of the project at issue letting Thus pursuant to Standard Specification 102 the bid of Lamplighter g 08 which had a common owner and principal officer with TOPCOR Services was subject to rejection Moreover because the Standard Specifications were made a part of the construction proposal herein the DOTD had no I discretion or authoriry to waive any of the requirements therein as they applied to Lamplighter LSA 38 see also LSA SA R 2212 i b 1 S R A 255 48 For these reasons we are constrained to conclude that the 18 DOTD directly violated the Public Bid Law when it reinstated the bid of Lamplighter Accordingly we find no error in the portion of the trial court s judgment enjoining the DOTD from awarding the contract at issue to Lamplighter owever to I the extent that the trial court went beyond simply prohibiting the DOTD from awarding the contract to Lamplighter and instead ordered that the DOTD was prohibited from awarding the contract to any entity other than Gibson the trial court erred For the reasons more fully discussed in the following section regarding the propriety ofthe writ of mandamus we conclude that the DOTD had discretion in deciding whether to award the bid to Gibson after the disqualification of Lamplighter given that Gibson bid was higher than the established threshold of the s preconstruction estimate for the project See LSA 48 SB R 255 b 5 Thus we amend the July 12 2010 judgment to provide that the preliminary injunction previously granted prohibits the DOTD from awarding the contract at issue to Lamplighter Proprietv of the Writ of Mandamus Assignment of Error No 5 In this assignment of error the DOTD contends that the trial court erred in issuing a writ of mandamus and ordering it to award the contract at issue to Gibson where the decision to award the contract or to reject all remaining bids which were outside of the established range above ar below the internal preconstruction estimate for the project was a discretionary decision rather than a ministerial act Pursuant to LSA art 3862 a writ of mandamus may be issued P C in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary 19 relief may cause injustice Nonetheless a writ ofmandamus may only issue to compel the performance of a ministerial duty required by law Copsey v Joint Legislative Budget Control Council 607 So 2d 841 843 La App l Cir 1992 A ministerial duty is one in which nothing is left to discretion Ifa public official is vested with any element of discretion mandamus will not lie Hoas v State 2004 0857 I 12 889 So 2d 1019 1023 a1 04 1024 The evidence presented at the hearing below establishes that while an estimated cost range is published to prospective bidders in the construction proposal that estimated range is for information purposes only The DOTD also prepares a preconstruction estimate which is a figure not published prior to the letting of a project and which is a figure used internally by the DOTD to determine whether a bid should be rejected Specifically in deciding whether to reject a bid the DOTD has established a range of plus 10 to minus 25 of the internal preconstruction estimate as the threshold amounts constituting just cause to reject the bid Thus when a bid is above the established threshold of the preconshuction estimate it is subject to being rejected by the DOTD chief engineer S R LSA b 5 B 255 48 According to the testimony of the chief engineer even though a bid is above the established range of the preconstruction estimate he may nonetheless accept the bid if there are revenues available to fund the project Further the DOTD chief engineer has sole responsibility in deciding whether to accept ar reject a bid that is outside the established range of the preconstruction estimate deem it noteworthy that the estimated cost range for the pxoject at issue that was published to prospective bidders was 1 to 2 but the 00 000 000 00 000 500 internal preconstruction estimate was 976 a figure below the published 45 986 estimated cost range Thus while Gibsods bid was within the published estimated cost range it was over the threshold of the preconstruction estimate and thus subject to rejection pursuant to LSA 48 Howevex when questioned about the S B R 255 b 5 fact that the DOTD preconstruction estimate was outside of the published estimated s 20 In the instant case all bids except Lamplighter were above the s established threshold of the preconstruction estimate for the project Thus we are constrained to agree with the DOTD that its chief engineer had the authority to reject all bids See LSA 48 SB R 255 b 5 Accordingly we cannot conclude that the awarding of the contract at issue to Gibson was simply a ministerial duty Thus the issuance of a writ of mandamus was not legally wananted and it must be reversed Damages and Attornev sFees for Allegedlv Wrongfullv Issued TRO Assignment of Error No 6 In its final assignment of error the DOTD contends that the trial court erred in failing to grant its motion to dissolve the TRO that the preliminary injunction should be dissolved and that it is entitled to damages pursuant to P C LSA art 3608 for wrongful issuance of the TRO and the preliminary injunction The trial court sjudgment was silent as to the DOTD request s for damages and attorney fees and this silence is deemed to be a rejection s of its demand Roberston v Sun Life Financial 2009 La App 1 2275 Cir 640 So 3d 507 510 10 11 Pursuant to LSA art 3608 a trial court may award damages P C for the wrongful issuance of a TRO or preliminary injunction Thus the trial s court decision to award damages or not to award damages for a wrongfully cost range iless than the amount expressed to prospective bidders the DOTD chief e engineer could provide little guidance regarding the process testifying that he was a little confused about that and that it was something he wanted to look into in the future We 16 note that the DOTD chief engineer testified that he did not know of any just cause not to award the contract to Gibson in the event that Lamplighter bid was s determined to be inegular and had to be disqualitled Nonetheless the evidence of record established that the decision whether to reject all other bids ox to accept Gibson s bid was a decision that he alone was authorized to make While an order relating to a TRO is not appealable pursuant to LSA art P C 3612 the denial of a request for damages and attorney fees for wrongful issuance of a s TRO if contained in an otherwise appealable judgment may be reviewed by the appellate cour See Davis v Ravmond Petroleum Inc 396 So 2d 600 601 La 602 APP 3 Cir 1981 21 issued TRO or preliminary injunction is discretionary M Construction G P Inc 878 So 2d at 629 and that decision will not be reversed on appeal absent an abuse of the trial court discretion LHO New Orleans LM L s P v MHI Leasco New Orleans lnc 2006 La App 4 Cir 4 0489 08 16 983 So 2d 217 228 229 Having found no error in the trial court determination that a s preliminary injunction was warranted we find no abuse of the trial court s discretion in refusing to award damages or attorney fees for the alleged s wrongful issuance of the TRO or the preliminary injunction This assignment of error lacks merit CONCLUSION For the above and foregoing reasons the portion ofthe July 12 2010 judgment granting a preliminary injunction is amended to provide that a preliminary injunction is issued prohibiting the DOTD from awarding State Project Nos 450 and 452 to Lamplighter Construction 0098 07 0055 92 C L As amended the portion of the judgment granting a preliminary injunction is affirmed However the portion of the judgment issuing a writ ofmandamus ordering the DOTD to award the subject contract to Gibson Associates Inc is hereby reversed and the matter is remanded for further proceedings In all other respects the judgment is affirmed Costs of this appeal in the amount of 2 are assessed against the DOTD 96 909 The motion to strike Lamplighter brief is hereby denied s AMENDED IN PART AND AFFIRMED AS AMENDED REVERSED IN PART AND REMANDED MOTION TO STRIKE S LAMPLIGHTER BRIEF DENIED 22 GIBSON STATF OF LOUISIANA ATES ASSOC INC COURT OF APPEAL VERSUS FIRST CIRCUIT F I SIANA MENT STA OF LOU DEPART OF TRANSPORTATION llEVELOPMENT NUMBER 2010 CA 1696 D McDONAL J AGREEING While 1 agree with the majority in the decision rendered I take this opportunity to address an issue I find somewhat troubling and perplexing As noted by the majority in footnote 14 and 15 the request for bids had a published estimated cost range for the piroject of 1 to 2 However 00 00 000 000 000 500 the non internal DOTD preconstruction estimate was 976 published 45 986 s Gibson bid was well within the published estimated cost range however it was above thE internal DO estimate No one in authority at DOTD including the ll I chief engineer could explain this paradox It is difticult to understand what seems at best to be a contradiction Why would the non internal cost estimate published be outside the parameters of the published estimated cost range If the chief engineer is a lirile conlused about the process it is small wonder that we would also not understand it It is difficult to understand why Gibson bid should not s have been accepted since it was withi the published estimated cost range As the l majority has stated we are constrained to agree with DOTD that LSA S R b 5 3 255 48 gives the chief engineer the authority to reject all bids that are above the confidential preconstruction intei cost estimate even if he did not nal know of any j ist cause not to award the contract to Gibson Even though it is statutorily authorized find it perplexing and enigmatic
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