SYSTEMS ENGINEERING AND SECURITY, INC. ("SES") Vs. SCIENCE & ENGINEERING ASSOCIATIONS, INC. ("SEA"), APOGEN, INC., AND ROBERT SAVOIE
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* NO. 2006-CA-0974 * COURT OF APPEAL * SYSTEMS ENGINEERING AND SECURITY, INC. ("SES") FOURTH CIRCUIT * STATE OF LOUISIANA VERSUS SCIENCE & ENGINEERING ASSOCIATIONS, INC. ("SEA"), APOGEN, INC., AND ROBERT SAVOIE * * ******* ARMSTRONG, C. J., DISSENTS WITH REASONS. I respectfully dissent. In 2000, SEA represented to the GSA that it was “small” in the process of bidding on a Blanket Purchase Agreement to support the Navy’s Information Technology Center in New Orleans. SES alleges that this was a misrepresentation. In 1998 the General Service Administration (“GSA”) awarded a Multiple Award Schedule (“MAS”) contract to SEA. SEA certified that it was a “small” business at the time. This certification is good for the fiveyear life of the MAS contract plus three additional five-year renewal options, regardless of whether SEA grows beyond what would normally qualify as “small” during the term of the MAS contract. Accordingly, as a matter of law, SEA is considered to be a small business for the duration of the MAS, which would include all times relevant to this litigation. Therefore, also as a matter of law, allegations of misrepresentations are immaterial for purposes of this litigation. Bearing this in mind, I believe that the plaintiff did not state a cause of action for intentional/fraudulent misrepresentation. I believe the plaintiff also did not state a cause of action for negligent misrepresentation. As I noted above, SEA is considered to be a small business for the duration of the MAS contract. Consequently, also as a matter of law, it is immaterial for purposes of this litigation whether SEA negligently misrepresented its size. Finally, I believe that the plaintiff did not state a cause of action for revocatory and oblique actions. SES’s petition alleges that “SEA made distributions to Apogen which caused or contributed to SEA’s insolvency such that SES as a creditor may revoke those distributions.” Thus, SES’s revocatory and oblique action claims presuppose SES’s status as a creditor of SEA. However, SES’s creditor status is in turn predicated upon SES’s above discussed claims against SEA which, as I have already pointed out, have no basis in law. For the foregoing reasons, I would affirm the judgment of the trial court.
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