The Louisiana Department of Transportation and Development (DOTD) advertised for bids for bridge joint repairs and replacements on Interstates 10 and 110 in East Baton Rouge and Iberville Parishes. Because the project was a federal aid project, compliance with the contract provisions for Disadvantaged Business Enterprises (DBE) required by federal law was mandatory. The Construction Proposal included contract provisions for DBE participation and provided that a specific form as to assurance of participation be timely submitted to the DOTD. The apparent low bidder’s failure to submit the form would constitute just cause for rejection of the bid.
TOPCOR Services, Inc. was the apparent low bidder. It was notified that its completed form must be submitted within ten days of the bid date. TOPCOR did not timely submit the form. It was disqualified, and barred from rebidding on the project if it was re-advertised. Gibson & Associates, Inc. was the second low bidder. DOTD did not accept Gibson’s bid, but instead, rejected all other bids and re-advertised the project. Lamplighter Construction, LLC was the apparent low bidder when the project was re-advertised. Lamplighter’s bid was initially rejected by the DOTD. DOTD determined Lamplighter was ineligible to bid the project under the Louisiana Standard Specifications for Road and Bridges since a principal officer or owner was also a principal officer or owner of TOPCOR Services which was previously disqualified from bidding. Sec. 102.08(g) of the Standard Specifications provides a bid may be considered irregular if an owner or principal officer of the bidding entity is an owner or principal of a contracting entity which has been declared to be ineligible to bid by DOTD. Gibson was the second low bidder when the project was re-advertised, and became the apparent low bidder when Lamplighter’s bid was rejected.
Lamplighter protested DOTD’s determination, asserting it was a distinct and separate contracting entity from TOPCOR Services. After a hearing, the DOTD chief engineer determined Lamplighter should be reinstated as the low bidder and awarded the contract. Gibson protested the decision. Following a hearing on the protest, the chief engineer reaffirmed his prior decision to reinstate Lamplighter. The next day, the DOTD notified Lamplighter it had been awarded the contract.
Gibson filed a petition for a temporary restraining order, preliminary injunction, permanent injunction, declaratory judgment and mandamus. 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) the bid submitted by Lamplighter was irregular pursuant to the Louisiana Standard Specifications for Roads and Bridges; 2) Lamplighter’s bid must be rejected; 3) any contract entered into by the DOTD with Lamplighter was null and void; and 4) Gibson was the low responsible bidder according to the contract, plans and specifications and, as such, was entitled to be awarded the project. Gibson also sought a writ of mandamus ordering the DOTD to accept Gibson’s bid and execute the contract with Gibson.
The trial court found TOPCOR Services and Lamplighter had a principal officer and/or owner in common, and, thus, the plain language of the Standard Specifications mandated a finding Lamplighter was ineligible to bid. It 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; 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. DOTD appealed.
The court of appeal found TOPCOR Services and Lamplighter not only shared a common owner, TOPCOR Companies, LLC, but also shared a common principal officer. DOTD violated the Public Bid Law when it reinstated Lamplighter’s bid, contrary to the Standard Specifications. It also held, however, the trial court went beyond simply prohibiting the DOTD from awarding the contract to Lamplighter by issuing an order pursuant to the application for a writ of mandamus that the contract be awarded to Gibson and finding the DOTD was prohibited from awarding the contract to any entity other than Gibson. A writ of mandamus may only issue to compel the performance of a ministerial duty required by law. Since Gibson’s bid was higher than the pre-construction estimate for the project, DOTD had discretion in deciding whether to award the contract to Gibson or reject all bids, and the writ of mandamus did not involve the performance of a ministerial duty and was not legally warranted and was reversed. Gibson & Associates, Inc. v. State of Louisiana, Department of Transportation & Development, 2010-1696 (La.App. 1 Cir. 5/18/11), 68 So.3d 1128.