Better Roads

December 2013

Better Roads Digital Magazine

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InCourt by Brian Morrow Attorney Brian Morrow is a partner in Newmeyer & Dillion LLP and a licensed civil engineer specializing in construction law, incl. road and heavy construction. Construction Law Update Improper bid award results in unsuccessful bidder being allowed to pursue damages against the City of New Orleans T he requirements of public bidding laws are strictly construed against bidders who fail to comply with bid instructions and statutory requirements. Although minor deviations in a bid may be waived, material deviations may not be waived. The failure to comply with bidding requirements on a public works project — even if a mistake is clerical in nature — can be fatal to an otherwise low bidder. In Command Construction Industries LLC v. City of New Orleans (Oct. 23, 2013), a Louisiana court of appeal held that a successful low bidder could not correct a clerical error after bids were opened, and therefore, the City of New Orleans should not have awarded the contract. As a result, an unsuccessful bidder was allowed to pursue a claim for damages against the city. This matter involved a bid dispute arising out of a contract for the Harrison Avenue Streetscape Project. The city's bid instructions included the warning that "[b]ids containing any conditions, omissions, unexplained alterations or irregularities of any kind may be rejected as informal." The city's bid documents further indicated that "[t]he prices should be expressed in words and figures ... [and] [i]n case of discrepancy between the prices written in the bid and those given in the figures, the price in writing will be considered as the bid." Modifications to bids were permitted before bidding was opened. These guidelines implied that once bids were opened, modifications were no longer permitted. 22 December 2013 Better Roads The form used by the bidders, a Louisiana Uniform Public Work Bid Form, requires a certification that each bidder will provide "all labor, materials, tools, appliances and facilities as required to perform, in a workmanlike manner, all work and services for the construction and completion of [the Project], all in strict accordance with the Bidding Documents." The bid form then sought a "Total Base Bid" amount, which stated that it was for "all work required by the Bidding Documents (including any and all unit prices designated as 'Base Bid' but not alternates)." Immediately after the Total Base Bid, each bidder was to supply three alternates, each in a lump sum amount, for a "[c]ross walk," "planting in median area" and "PVC sleeves and pull boxes." On July 10, 2012, the City of New Orleans received and opened bids. Three bids were received from FH Paschen Tectronics, Inc. (FHP), Durr Heavy Construction LLC (Durr) and Command Construction Industries LLC (Command). Although FHP submitted the lowest bid, FHP's bid was not considered due to bid defects. Command submitted the next lowest bid of $2,793,046.00. Durr submitted a bid of $2,974,275.00. On July 11, 2012 — the day after bids were publicly opened — Durr sent a letter attempting to revise its bid due to a "clerical error," and substituted a revised base bid of $2,444,850.80. Durr's initial bid was mistakenly comprised of the base bid plus the three lump-sum alternates. When the three alternates were subtracted

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