May 12, 2020
Since early March 2020, in response to the COVID-19 pandemic, Governor John Bel Edwards has issued a dozen or more proclamations addressing a broad spectrum of legal issues. These proclamations have suspended legal delays, prescriptive periods and a host of other statutory requirements. The Governor has also issued several Proclamations affecting the public bid statutes. The Governor’s authority to suspend statewide laws in emergencies is well recognized and is largely derived from LSA R.S. 29:724. Section (D)(1) of that statute provides in part:
Pursuant to the above authority, Governor Edwards issued Proclamation No. 32 on March 19, 2020, and Proclamation No. 41 on April 2, 2020, which similarly provide:
The language from the above referenced Proclamations appear to be clear, the Louisiana Public Bid Law was suspended in its entirety from March 19, 2020 through April 30, 2020 (the effective date of Proclamation No. 52). During this time, arguably, projects were permitted to go forward on an emergency basis only. In such circumstances, public entities were required to comply with the emergency provisions contained in LSA R.S. 38:2212(P), including maintaining a record of the description of the work to be performed, the name and address of each offeror providing quotes, and the performance time and terms of each offer. Additionally, if quotations lower than the accepted quotation were received, the reasons for their rejection should have been recorded and made a part of the contract case file. Such records are required to be kept for a minimum of six years following the purchase or completion of the public work.
See LSA R.S. 38:2212(P)(2). See also the Legislative Auditor’s Legal Guidance on Covid-19.
On April 30, 2020, Governor Edwards issued Proclamation No. 52, which appears to continue the suspension with respect to any goods or services necessary to respond to the Covid-19 emergency. Again, this appears to promote the use of the emergency procedures set forth in the Public Bid Law. See Section 3(A) which provides: suspensions of the “Louisiana Public Bid Law (La. R.S. 38:2211, et seq.) and their corresponding rules and regulations are hereby continued for the purpose of the procurement of any good or services necessary to respond to this emergency.” However, Section 3(E) further provides:
As such, effective April 30, 2020, it appears that except for the procurement of any good or services necessary to respond to this emergency, any suspension of the public bid laws has been lifted and all public work projects or qualifying materials or equipment purchases must be bid in accordance with LSA R.S. 38:2212 et. seq. There is of course a caveat. Public entities are permitted to extend public bid deadlines at their own discretion. There is no guidance on the extent of this discretion, and there are significant unanswered questions. Does the political subdivision have to justify the extension of the applicable deadline? Importantly, may a political subdivision extend the deadlines for the purpose of allowing bidders to cure non-confirming bids? It is notable that any requirement that bids be read allowed in public is suspended until further clarification from the Governor’s office. State agencies and political subdivisions are required to conduct any bid openings via phone or web conference. Additionally, the bidding requirements for state highway projects are set forth in Title 48 and have not been suspended by the Governor’s Proclamations.
Any challenges to bid processes utilized should of course be raised as early as possible. Louisiana law provides that certain remedies under the Louisiana Public Bid Law are waived unless a suit requesting injunctive relief is filed prior to the execution of a contract. There are also circumstances where irregularities must be raised prior to the bid date.
In short, questions remain regarding the propriety of the bidding procedures utilized over the last several months on public works projects. Nevertheless, it appears that by virtue of the Governor’s most recent Proclamation, some sense of normalcy is returning to the process. The construction industry should get some clarity this week as the Governor rolls out his Phase I opening plan and a new less restrictive Proclamation is expected.
If you have any further questions, please do not hesitate to contact any member of the Taylor Porter Construction Practice. We will continue to alert you of these updates and post any news and legal developments to our Coronavirus Legal Blog and Resources section of our website.
About John Andrishok: Taylor Porter Special Counsel John Andrishok, practicing law since 1997, represents clients in construction litigation and labor and employment law. John is an active member of Associated Builders and Contractors and Louisiana Associated General Contractors and has litigated construction matters throughout the Gulf South. He represents all aspects of the construction industry including public and private owners, general contractors, subcontractors, suppliers and design professionals. John has been selected by clients and peers in Chambers USA and Best Lawyers in Construction Law. John is a Charter Fellow of the Construction Lawyers Society of America.