Taylor, Porter, Brooks & Phillips LLP issued the following announcement on May 12.
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:
D. In addition to any other powers conferred upon the governor by law, he may do any or all of the following:
(1) Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.
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 following provisions of the Public Bid Law, La. R.S. 38:2211, et seq., are hereby suspended during this emergency:
Louisiana Public Bid Law (La. R.S. 38:2211, et seq.) and its corresponding rules and regulations relating to deadlines for advertisement for bids for public works, submission of bids and ancillary documents, award and execution of public works contracts, and any other deadlines related to the advertisement, award, and execution of a public works contract mandated by statute or by said rules and regulations.
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.
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:
The following provisions of the Public Bid Law, La. R.S. 38:2211, et seq., is in effect, however, deadlines may be extended during this emergency:
Louisiana Public Bid Law (La. R.S. 38:2211, et seq.) and its corresponding rules and regulations relating to deadlines for advertisement for bids for public works, submission of bids and ancillary documents, award and execution of public works contracts, and any other deadlines related to the advertisement, award, and execution of a public works contract mandated by statute or by said rules and regulations can be extended as necessary.
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.
Original source can be found here.