GeoSport Lighting Systems, LLC v. City of Bossier City, Louisiana

Judgment rendered April 14, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,869-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

GEOSPORT LIGHTING Plaintiff-Appellant
SYSTEMS, LLC

versus

CITY OF BOSSIER CITY, Defendant-Appellee
LOUISIANA

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 160417

Honorable E. Charles Jacobs, Judge

*****

JONES WALKER, LLP Counsel for Appellant
By: Brandon Kelly Black
David Matthew Kerth
Charles Parker Kilgore
Tiffany Nicole Dupree

KEAN MILLER, LLP Counsel for Appellee,
By: Michael D. Lowe City of Bossier City,
Louisiana

CHAFFE MCCALL LLP Counsel for Appellee,
By: Scott Cameron Barney Musco Sports Lighting,
Katharine R. Colletta LLC
Amy L. McIntire

*****

Before GARRETT, COX, and STEPHENS, JJ.

GARRETT, J.

The plaintiff, GeoSport Lighting Systems, LLC (“GeoSport”), appeals

from a trial court judgment granting exceptions of no cause of action and no

cause of action and/or prescription filed on behalf of the City of Bossier

City, Louisiana (“City”), and Musco Sports Lighting, LLC (“Musco”), and

denying as moot GeoSport’s motion for leave to file a second amended

petition for damages against the City and Musco. For the following reasons,

we reverse and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This case arises from a dispute regarding a public bid for lighting at

various sports fields owned and operated by the City. One project involved

the replacement of lights and the other project involved new lighting. In

June 2019, the City issued an advertisement for public bids for the projects.

According to GeoSport, bid documents were assembled by Purtle &

Associates (“Purtle”), an engineering firm, with assistance from Musco. The

bid documents specified the use of Musco lights or a product that met or

exceeded the standards set forth in the bid documents.1 Musco is a

competitor of GeoSport.

Four companies bid on the project, including GeoSport and Musco.

When the bids were opened on August 6, 2019, GeoSport was the low

bidder at $2,263,000. Musco’s bid was the next lowest at $2,292,015.

GeoSport’s bid utilized its own lights, not Musco’s, and after the bid

opening, GeoSport submitted information on August 15, 2019, to show that

1
According to counsel for the City in brief and in argument, the Musco product
was preferred because their lights reduced complaints from neighbors of being too bright
and they had a component known as a driver that was located in the pole rather than in
the light fixture, making repair of the lights easier. These contentions go to the merits of
the case, which are not before us.

its lights were the functional equivalent of Musco’s. It also furnished a

required list of references of work done in Louisiana. Bidders not using

Musco lights were required to include a revised electrical distribution plan

signed by a licensed Louisiana electrical engineer. GeoSport contended that

this was a “pay to play” provision, requiring a bidder to expend a significant

amount in order to bid, and this was prohibited by the Louisiana Public Bid

Law (“PBL”). Regarding this requirement, GeoSport responded with “N/A”

on its post-submission information.

On August 23, 2019, the City’s purchasing agent sent a letter to

GeoSport informing it that its bid was found to be nonresponsive for failure

to furnish all required information and that the information furnished was

incomplete. Regarding the replacement project, Purtle issued a shop

drawing review which listed 25 deficiencies. Regarding the new lighting

project, Purtle’s shop drawing review listed 23 deficiencies. GeoSport was

instructed that, under Section 25 of the Public Works Standards and

Conditions, it had five working days to protest the determination in writing

to the purchasing agent for the City.

On August 27, 2019, two working days later, GeoSport’s counsel sent

a letter to the City asking that its letter be considered notice of GeoSport’s

protest of the rejection of its responsive bid. GeoSport also claimed that the

City rejected its references and, therefore, also found that the company was a

nonresponsible bidder in addition to being nonresponsive. GeoSport

contended that, because it was found to be nonresponsible, it was entitled to

2

an informal hearing under La. R.S. 38:2212(X), to refute the reasons given

for rejecting GeoSport’s bid.2

On August 28, 2019, the City’s purchasing agent sent a letter to

GeoSport rejecting the request for an informal hearing, arguing that

GeoSport’s bid was found to be nonresponsive. There was no determination

that GeoSport was not a “responsible” bidder, as required for an informal

hearing. The letter stated that, under Section 25, quoted above, any protest

must contain, at a minimum, a statement of the grounds for the protest which

would allow the City to respond to each substantive issue raised in the

protest. Based upon the information provided and Purtle’s review and

rejection of GeoSport’s submittals, the protest was denied. The City stated

that it intended to proceed with the acceptance of the next lowest responsive

2
La. R.S. 38:2212(X) provides:

X. (1) If the public entity letting the contract proposes to disqualify
any bidder, either as a potential bidder or as the low bidder, on grounds
that such bidder is not a “responsible bidder” such public entity shall do
all of the following:
(a) Give written notice of the proposed action to such bidder and
include in the written notice all reasons for the proposed action.
(b) Give the bidder who is proposed to be disqualified the
opportunity to be heard at an informal hearing at which such bidder is
afforded the opportunity to refute the reasons for the proposed action.
(2) The informal hearing shall be conducted prior to award of the
public work.
(3) The informal hearing shall be a condition precedent to any
action by the bidder adverse to the public entity, its representatives,
employees, and designers.
(4) The informal hearing shall be conducted by the public entity
not later than five business days after the date of the notice of
disqualification of such bidder. The public entity shall issue a ruling in
writing and deliver it to the affected bidder not later than five business
days after the date of the informal hearing.
(5) No award of the contract for the public work shall be made by
the public entity prior to the expiration of at least five working days
following the date of issuance of the decision by the hearing official.
(6) The provisions of this Subsection shall not apply to such
actions of the Department of Transportation and Development.

3

bid. The letter included contact information for the City’s legal counsel and

directed that any further questions or inquiries be made to that attorney.

On August 30, 2019, five working days after the City’s letter rejecting

GeoSport’s bid, GeoSport wrote a letter to the City’s attorney and again

requested an informal hearing. The letter claimed that the requirement of a

revised electrical plan from bidders not using Musco products constituted a

“pay to play” provision which is prohibited under the PBL. GeoSport also

included responses to all the items listed in Purtle’s shop drawing reviews of

the projects which were found to be deficient or excluded.

On September 4, 2019, the City’s attorney responded, denying the

request for an informal hearing, arguing that GeoSport was found to be a

nonresponsive bidder, not a nonresponsible bidder. The City pointed out

that GeoSport chose not to use a pre-bid procedure for approval of non-

Musco products. The letter addressed GeoSport’s responses to Purtle’s shop

drawing reviews and remained firm in the City’s conclusion that the

company failed to provide all required information.

On September 4, 2019, the City awarded the contract to Musco. The

contract was signed by the parties on September 10 and September 11, and

was recorded on September 12, 2019. Musco began work on the projects.

On September 10, 2019, GeoSport instituted this suit by filing a

petition for preliminary and permanent injunctive relief and declaratory

relief. Voluminous exhibits were attached to the petition, which included

the bid documents, addendum, GeoSport’s bid, bid tabulation, submittals,

and all of the correspondence outlined above. Claiming violations of the

PBL by the City, GeoSport sought to enjoin the award of the bid to a higher

bidder, to annul the award, and to obtain an injunction to prohibit the award
4

of the contract to a higher bidder. Only the City was named as a defendant

at that point. According to GeoSport, the bid documents violated the PBL

by: (1) allowing bid specifications to be designed by Musco in order to

stifle competition and to ensure that only a Musco product would qualify;

(2) requiring an identical product to Musco’s, not one that was functionally

equivalent; (3) requiring preapproval of a product; (4) containing “pay-to

play” provisions; and (5) requiring the prequalification of bidders.

GeoSport alleged that its bid was wrongfully rejected by the City.

GeoSport also contended that the City violated the PBL by failing to provide

the notice and an informal hearing required by La. R.S. 38:2212(X) prior to

rejecting GeoSport’s bid. The company continued to insist that, because the

City rejected its references, it was found to be a nonresponsible bidder, as

well as a nonresponsive bidder.

On September 13, 2019, GeoSport fax-filed a motion to set the

petition for preliminary injunction for hearing on the court’s next available

hearing date, pursuant to La. C.C.P. art. 3602. The hearing was set for

October 14, 2019.

On September 27, 2019, the City filed answers, exceptions, and

affirmative defenses. It asserted the exception of nonjoinder, arguing that

Musco was needed for just adjudication. It filed a peremptory exception of

prescription and/or no cause of action claiming that GeoSport failed to

timely raise objections to those portions of the bid process it alleged violated

the PBL and waived the right to object. The City asserted an exception of

no cause of action arguing that GeoSport was not entitled to an informal

hearing under La. R.S. 38:2212(X) and, because the contract had already

been awarded to Musco, the issue was moot. The City filed a dilatory
5

exception of unauthorized use of a summary proceeding and/or improper

cumulation of actions, pointing out that an injunction is a summary

proceeding and a declaratory judgment requires an ordinary proceeding.

GeoSport filed an amended petition on October 16, 2019, and Musco

was added as a defendant. GeoSport reasserted the allegations contained in

the original petition and added some new ones about alleged improprieties

by the defendants in violation of the PBL. It further urged that its claims

were not waived and were timely asserted. Due to the filing of the amended

petition, the hearing on the original petition for preliminary injunction was

continued without date by agreement of GeoSport and the City. The hearing

was eventually set for November 25, 2019.

The City and Musco each filed exceptions of no cause of action and

no cause of action and/or prescription to the amended petition. They argued

improper cumulation of actions in seeking both an injunction and a

declaratory judgment in the same petition.3 The City and Musco asserted

that GeoSport was not entitled to an informal hearing under La. R.S.

38:2212(X), and that its claims had prescribed or were waived because the

company was required to assert alleged violations of the PBL prior to the

bid. The defendants argued that GeoSport failed to raise its complaints

regarding violation of the PBL at any time prior to or during the bidding

3
On November 19, 2019, the parties entered into a consent judgment agreeing
that the preliminary injunction should be denied as moot because Musco was near
completion of the project and it might be complete by the date of the hearing set for
November 25, 2019. They also agreed that the defendants’ exceptions of improper
cumulation of actions and unauthorized use of a summary proceeding should be denied as
moot. GeoSport reserved the right to pursue any remaining claims against the City and
Musco. The City and Musco reserved all exceptions and defenses to GeoSport’s claims.
The exceptions of no cause of action and prescription remained pending. The consent
judgment was signed by the trial court on November 20, 2019, and the hearing on the
defendants’ exceptions was set for January 27, 2020.

6

process despite its knowledge of all relevant facts. Instead, GeoSport

submitted its bid and attempted unsuccessfully to comply with the

specifications regarding post-bid submissions that it contended were in

violation of the PBL. After its bid and post-bid submissions were deemed

unresponsive, GeoSport asserted its complaints. The defendants maintained

that GeoSport waived its claims because they were not timely asserted.

GeoSport filed a motion for leave to file a second amended petition to

request a declaration that the contract between the city and Musco was null

and void and that GeoSport was entitled to damages and attorney fees for the

arbitrary rejection of its bid in violation of the PBL. The City consented to

the filing, but Musco objected. It argued that GeoSport waived all rights by

not raising objections prior to the bid and the company could not amend its

petition to cure this fatal defect.

A hearing was held on the exceptions and the request for leave to file

the second amended petition on January 27, 2020. No evidence was

adduced, but the court heard lengthy arguments by counsel. The arguments

digressed into a discussion of the facts and the merits of the underlying case

instead of focusing on the narrow issue before the court—timeliness.4

4
At one point during the hearing, the following colloquy occurred:

[Court]:
So you want me to substitute my judgment of the City and the
City’s engineer for functional equivalency?
[GeoSport’s counsel]:
That is a factual question, Your Honor. That’s why – that’s why
this no cause of action’s not the right place to do it.

We note that in La. R.S. 38:2212.2(C)(2) and (T)(2), the PBL provides:

C. (2) Wherever in specifications the name of a certain brand,
make, manufacturer, or definite specification is utilized, the specifications
shall state clearly that they are used only to denote the quality standard of
product desired and that they do not restrict bidders to the specific brand,
make, manufacturer, or specification named; that they are used only to set
7

forth and convey to prospective bidders the general style, type, character,
and quality of product desired; and that equivalent products will be
acceptable.

T. (2) Wherever a public entity specifies the name of a certain
brand, make, manufacturer, or uses a definite specification, the bidding
documents shall state clearly that they are used only to denote the quality
standard of product desired and that they do not restrict bidders to the
specific brand, make, manufacturer, or specification named; that they are
used only to set forth and convey to prospective bidders the general style,
type, character, and quality of product desired; and that equivalent
products may be acceptable. It shall be the responsibility of the
professionally employed architect or engineer to determine what is
considered an equivalent product on any and all projects in which he has
been legally employed to perform his professional services.

The use of a closed specification is prohibited by La. R.S. 38:2290. That statute
provides:

A. No architect or engineer, either directly or indirectly, shall
submit a closed specification of a product to be used in the construction of
a public building or project, unless all products other than the one
specified would detract from the utility of the building, or except in those
cases where a particular material is required to preserve the historical
integrity of the building or the uniform appearance of an existing structure,
or is required as part of an integrated coastal protection project, as defined
in R.S. 49:214.2, for the evaluation of new and improved integrated
coastal protection technologies.

B. A closed specification shall not be submitted or authorized
when any person or group of persons possess the right to exclusive
distribution of the specified product, unless the product is required to
expand or extend an existing system presently operating at the facility or
site, or if a specified product is required as part of an integrated coastal
protection project, as defined in R.S. 49:214.2, for the evaluation of new
and improved integrated coastal protection technologies. However, no
such closed specifications shall be allowed until rules have been
promulgated by the division of administration after oversight by the
Senate and House Committees on Transportation, Highways and Public
Works and other appropriate legislative committees.

Further, La. R.S. 38:2292 states:

The approving authority may accept a closed specification only
after it determines that all products brought to its attention are excludable
under the provisions of R.S. 38:2290, however, the approving authority
must reject the closed specification, should another product of equal utility
and appearance be submitted to them prior to letting of the bid, in which
event the specifications must be amended so as to allow substitution of an
equal.

Courts have been called upon to determine whether a product is functionally
equivalent to those specified in a bid. See Akers v. Bernhard Mech. Contractors, Inc.,
48,871 (La. App. 2 Cir. 4/16/14), 137 So. 3d 818, writ denied, 14-1040 (La. 9/12/14), 148
So. 3d 931, writ denied, 14-1100 (La. 9/12/14), 148 So. 3d 934, and writ denied, 14-1103
(La. 9/12/14), 148 So. 3d 935. This issue goes to the merits of the case and is not before
us.
8

The defendants argued that the bid specifications allowed for approval

of equivalent products either before or after the bid. They contended that the

post-application information furnished by GeoSport did not contain

everything required and what was furnished was “woefully inadequate” to

establish that its product was equivalent to Musco’s. The City contended

that GeoSport’s lights did not meet the bid specifications, and on August 23,

2019, GeoSport was notified that its bid was nonresponsive. On August 27,

2019, GeoSport asked for an informal hearing it was not entitled to, and on

August 28, the City informed GeoSport that it was moving ahead with the

project. The contract with Musco was recorded on September 12, 2019.

When GeoSport filed suit on September 10, it did not ask for a temporary

restraining order or an expedited hearing on its preliminary injunction.

According to the defendants, GeoSport waited too long to assert its claims,

putting the City at a disadvantage because it was then faced with paying

twice for the projects. They argued that GeoSport was required to object to

the bidding process at a time when the City could have remedied the

problems. Because GeoSport did not assert all its protests about the bid

solicitation process within five days of the opening of the bids, the

defendants maintained that it waived its objections to the bid procedure by

failing to timely object. The City continued to argue that GeoSport was not

entitled to a La. R.S. 38:2212(X) hearing.

GeoSport countered that it immediately protested as soon as its bid

was rejected. The lawsuit was instituted before Musco and the City entered

into their contract. According to GeoSport, it did not know in advance

whether the City would “be reasonable” and allow a functionally equivalent

product until its bid was actually rejected. On September 4, 2019, the City
9

said it would no longer discuss the rejection with GeoSport and the company

filed this suit on September 10. GeoSport contended that the defendants’

argument that any objections to the bid process had to be made before the

opening of the bids would invite “thousands of lawsuits,” which would

unduly delay the construction process. GeoSport also argued that the PBL

does not require a suit to be filed prior to award of the contract if there is an

issue with the bid specifications.

At the close of arguments, the trial court granted the exceptions of no

cause of action and no cause of action and/or prescription, stating as follows:

And therefore, if GeoSport thought that there was a
problem or believed that there was a problem with the bid
specifications when they picked up the package they had two
choices; they could’ve either filed an injunction at that time or a
request for an injunction or a lawsuit at that time or they
could’ve just chose not to submit a bid. I think it’s somewhat
disingenuous then to submit a bid, be declared the lowest
responsible bidder and then . . . fail to then propose an
equivalent product. And I do understand I guess a little bit of
the dispute between Musco and GeoSport. Um, you know, and
apparently it seems to be but, you know, even taking that in
consideration they had these bid – bid specifications. They
knew what their products provided and what their products
didn’t provide. They knew at the outset that this was gonna be
an issue and the – this is something that should’ve been
disputed and raised during the bid process, um you know before
the bid was awarded or, you know, or during that five, ten-day
protest period. And I just don’t see, you know, where GeoSport
ever attempted to do this. So based upon all that it looks like
the bids were opened on August 6 of 2019 is my understanding.
The contract was signed on September 10th of 2019 with
Musco. Between, you know, other than some letters, you
know, it doesn’t seem like there was any formal protest other
than the fact that these specifications provided at the outset by
the City’s engineers were not valid or for lack of a better word,
not proper or illegal and that as soon as GeoSport got a copy of
those specifications then they should’ve tooken whatever legal
steps that they felt were proper then to challenge the
specifications as not proper under the public bid law during the
bid process. They did not do that and so they’ve waived their
right then to – to the responsive versus nonresponsive and this
is not an issue of responsibility. So based upon all that I am
gonna respectfully grant the exception of no cause of action.
10

I’ll respectfully note your opposition to my ruling for the record
and that would render the remaining matters moot at this
point[.]

On April 16, 2020, the trial court signed a judgment granting the

exceptions. The motion for leave to file a second amended petition filed by

GeoSport was denied as moot.5 GeoSport’s petition was dismissed with

prejudice. GeoSport appealed.

NO CAUSE OF ACTION

GeoSport contends that the trial court erred in granting the

defendants’ exceptions of no cause of action and/or exception of

prescription, dismissing with prejudice GeoSport’s claims against the City

and Musco for unlawfully awarding a contract to Musco where GeoSport

was the lowest responsive and responsible bidder. This argument has merit.

Legal Principles

The peremptory exception of no cause of action is set forth in La.

C.C.P. art. 927(A)(5). It tests the legal sufficiency of the petition by

determining whether the law affords a remedy on the facts alleged in the

petition. Vince v. Metro Rediscount Co., Inc., 18-2056 (La. 2/25/19), 264

So. 3d 440; Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So.

3d 876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L. Ed. 2d 130

(2014); Sanctuary Capital, LLC on Behalf of N. La. Bidco, LLC v. Cloud,

53,157 (La. App. 2 Cir. 11/20/19), 285 So. 3d 123; Port City Glass & Paint

Inc. v. Brooks, 52,534 (La. App. 2 Cir. 2/27/19), 266 So. 3d 516. “Cause of

action,” as used in the context of the peremptory exception, means the

5
During these proceedings in December 2019, GeoSport filed a motion to compel
Musco to give proper discovery responses. Musco argued that it did not have to respond
to discovery requests while its exceptions were pending and asked for a protective order.
The trial court judgment also denied as moot the motion for a protective order filed by
Musco and the motion to compel discovery filed by GeoSport.
11

operative facts which give rise to the plaintiff’s right to judicially assert the

action against the defendant. State, Div. of Admin., Office of Facility

Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La. 5/10/11),

63 So. 3d 940; Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.

2d 1234 (La. 1993). The exception is triable on the face of the petition; and,

for the purpose of determining the issues raised by the exception, the well-

pleaded facts in the petition must be accepted as true. Badeaux v. Southwest

Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So. 2d 1211; Fink v.

Bryant, 01-0987 (La. 11/28/01), 801 So. 2d 346. In ruling on an exception

of no cause of action, a court is generally limited to considering the petition

and the documents attached thereto. Robinson v. Moises, 2014-1027 (La.

App. 4 Cir. 6/10/15), 171 So. 3d 1108. The issue at the trial of the exception

is whether, on the face of the petition, the plaintiff is legally entitled to the

relief sought. State, Div. of Admin., Office of Facility Planning & Control v.

Infinity Sur. Agency, L.L.C., supra.

Louisiana utilizes a system of fact pleading. Accordingly, it is not

necessary for a plaintiff to plead the theory of his case in the petition.

Nevertheless, the mere conclusions of the plaintiff unsupported by facts do

not set forth a cause of action. State, Div. of Admin., Office of Facility

Planning & Control v. Infinity Sur. Agency, L.L.C., supra.

No evidence may be introduced at any time to support or controvert

the objection that the petition fails to state a cause of action. La. C.C.P. art.

931. An exception of no cause of action should be granted only when it

appears beyond doubt that the plaintiff can prove no set of facts in support of

any claim which would entitle him to relief. Badeaux v. Southwest

Computer Bureau, Inc., supra.
12

If the petition states a cause of action on any ground or portion of the

demand, the exception should generally be overruled. Every reasonable

interpretation must be accorded the language used in the petition in favor of

maintaining its sufficiency and affording the plaintiff the opportunity of

presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc.,

supra; Stonecipher v. Caddo Par., 51,148 (La. App. 2 Cir. 4/7/17), 219 So.

3d 1187, writ denied, 17-0972 (La. 10/9/17), 227 So. 3d 830. If the petition

states a cause of action on any ground or portion of the demand, the

exception should generally be overruled. Badeaux v. Southwest Computer

Bureau, Inc., supra; Everything on Wheels Subaru, Inc. v. Subaru S., Inc.,

supra. Every reasonable interpretation must be accorded the language used

in the petition in favor of maintaining its sufficiency and affording the

plaintiff the opportunity of presenting evidence at trial. Badeaux v.

Southwest Computer Bureau, Inc., supra. On an exception of no cause of

action, the court may not make factual determinations on the merits of the

claim. See State, Div. of Admin., Office of Facility Planning & Control v.

Infinity Sur. Agency, L.L.C., supra.

The burden of showing that the plaintiff has stated no cause of action

is upon the exceptor. The public policy behind the burden is to afford the

party his day in court to present his evidence. City of New Orleans v. Board

of Directors of La. State Museum, 98-1170 (La. 3/2/99), 739 So. 2d 748;

Port City Glass & Paint Inc. v. Brooks, supra; Villareal v. 6494 Homes,

LLC, 48,302 (La. App. 2 Cir. 8/7/13), 121 So. 3d 1246.

An appellate court reviews a trial court’s ruling on an exception of no

cause of action de novo because the exception raises a question of law and

the lower court’s decision is based only on the sufficiency of the petition.
13

Port City Glass & Paint Inc. v. Brooks, supra; Mack v. Evans, 35,364 (La.

App. 2 Cir. 12/5/01), 804 So. 2d 730, writ denied, 02-0422 (La. 4/19/02),

813 So. 2d 1088.

Louisiana’s PBL, set forth in La. R.S. 38:2211, et seq., is a

prohibitory law founded on public policy. Hamp’s Const., L.L.C. v. City of

New Orleans, 05-0489 (La. 2/22/06), 924 So. 2d 104; Broadmoor, L.L.C. v.

Ernest N. Morial New Orleans Exhibition Hall Auth., 04-0211 (La. 3/18/04),

867 So. 2d 651. Pursuant to the PBL, the legislature has specifically

prescribed the conditions upon which it will permit public work to be done

on its behalf or on behalf of its political subdivisions. The statute was

enacted in the interest of the taxpaying citizens and has for its purpose the

protecting of them against contracts of public officials entered into because

of favoritism and involving exorbitant and extortionate prices. A political

entity has no authority to take any action which is inconsistent with the PBL.

See Hamp’s Const., L.L.C. v. City of New Orleans, supra; Broadmoor,

L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Auth., supra.

Regarding the advertisement and awarding of work to the lowest

responsive and responsible bidder, La. R.S. 38:2212(B) provides in part:

B. (1) The provisions and requirements of this Section
and those stated in the bidding documents shall not be waived
by any entity.

(2) Any public entity advertising for public work shall
use only the Louisiana Uniform Bid Form as promulgated in
accordance with the Administrative Procedure Act by the
division of administration, office of facility planning and
control. The bidding documents shall require only the following
information and documentation to be submitted by a bidder at
the time designated in the advertisement for bid opening: Bid
Security or Bid Bond, Acknowledgment of Addenda, Base Bid,
Alternates, Signature of Bidder, Name, Title, and Address of
Bidder, Name of Firm or Joint Venture, Corporate Resolution
or written evidence of the authority of the person signing the
14

bid, and Louisiana Contractors License Number, and on public
works projects where unit prices are utilized, a section on the
bid form where the unit price utilized in the bid shall be set
forth including a description for each unit; however, unit prices
shall not be utilized for the construction of building projects,
unless the unit prices and their extensions are incorporated into
the base bid or alternates.

(3)(a) The bidding documents shall not require any
bidder, other than the apparent low bidder, to furnish any other
information or documentation, including the Attestation
Affidavit and the E-Verification Form, any sooner than ten days
after the date bids are opened; however, the apparent low bidder
may submit such information or documentation at any time
prior to the expiration of the ten-day period. If the apparent low
bidder does not submit the proper information or
documentation as required by the bidding documents within the
ten-day period, such bidder shall be declared non-responsive,
and the public entity may award the bid to the next lowest
bidder, and afford the next lowest bidder not less than ten days
from the date the apparent low bidder is declared non-
responsive, to submit the proper information and
documentation as required by the bidding documents, and may
continue such process until the public entity either determines
the low bidder or rejects all bids[.]

The bid documents in this case contain a provision in Section 25 of

the Public Works Standard Terms and Conditions regarding the time for

raising objections to the solicitation process and the award of bids. That

provision states:

25. PROTESTS All protests regarding the solicitation process
must be submitted in written form to the Purchasing Agent
within five (5) working days following the opening of
bids/proposals. This includes all protests relating to legal
advertisements, deadlines, bid/proposal openings, and all other
related procedures under the Local Government Code, as well
as any protests relating to alleged improprieties or ambiguities
in the specifications contained herein or in the contract
documents. Post-award protests must be submitted in written
form to the Purchasing Agent within five (5) working days after
award. The protest must include, at a minimum, the name of
the protestor, bid/proposal number or description of goods and
services, and a statement of the grounds for protest. The
Purchase Agent, having authority to make the final
determination, will respond within ten (10) working days to
each substantive issue raised in the protest. Allowances for
reconsideration shall be made only if data becomes available
15

that was not previously known, or if there has been an error of
law or regulation.

The PBL remedy for improperly awarding a bid is set forth in La. R.S.

38:2220 and requires seeking injunctive relief. That provision states in part:

A. Any purchase of materials or supplies, or any contract
entered into for the construction of public works, contrary to the
provisions of this Part shall be null and void.

B. The district attorney in whose district a violation of
this Part occurs, the attorney general, or any interested party
may bring suit in the district court through summary proceeding
to enjoin the award of a contract or to seek other appropriate
injunctive relief to prevent the award of a contract which would
be in violation of this Part, or through ordinary proceeding to
seek appropriate remedy to nullify a contract entered into in
violation of this Part[.]

The PBL contains no time limits for seeking such injunctive relief.

Under the jurisprudence, the issue of the timelines of such claims has

generally been governed by the guidelines set forth by the Louisiana

Supreme Court in Airline Const. Co., Inc. v. Ascension Par. Sch. Bd., 568

So. 2d 1029 (La. 1990). In that case, the supreme court considered whether

an unsuccessful bidder on a public contract had a cause of action for

damages against the public body that awarded the contract when the

unsuccessful bidder failed to first seek an injunction against the public

body’s execution of the contract with the successful bidder or take steps to

challenge the contract prior to filing suit to recover damages based on the

public body’s violation of the PBL. In Airline, a school board advertised for

bids for a school construction project in early 1986 and provided that any

bids which were prequalified would be rejected. “Prequalified” meant a bid

conditioned upon or qualified by the occurrence of some event. In July

1986, the bids were opened and awarded to Picou Brothers Construction

Company, Inc. (“Picou”). Almost one year later, in March 1987, Airline
16

Construction Company (“Airline”) filed suit for damages, without first

seeking injunctive relief, claiming that Picou’s bid was prequalified by

stating that some of its contractors would do the work for the stated price if

they were paid sums already owed by Picou for other work. The school

board filed an exception of no cause of action arguing, among other things,

that Airline’s sole remedy was injunctive relief. The supreme court issued a

narrow holding that an unsuccessful bidder on a public contract who fails to

resort to the relief granted by statute by attempting to enjoin timely the

execution or performance of the contract, when the facts necessary for

injunctive relief are known or readily ascertainable by the bidder, is

precluded from recovering damages against the public body.

The supreme court stated that an unsuccessful bidder on a public

contract who wishes to obtain relief because of the rejection of its bid must

seek injunctive relief at a time when the grounds for attacking the wrongful

award of the contract were known or knowable to the bidder and when

corrective action as a practical matter can be taken by the public body.

According to the supreme court, if an aggrieved bidder does not timely file a

suit for injunction, he waives any right he may have to claim damages

against the public body or the successful bidder.

The supreme court stated that the timeliness of a suit for injunction

depends on the facts and circumstances of the particular case, including,

among other things, the knowledge possessed by the attacking bidder

concerning the wrongful award of the contract, the point in time the bidder

acquired this knowledge, the point in time that the public body became

indebted to the successful bidder, and the time period between the awarding

of the illegal contract and the completion of construction. Airline, supra.
17

Discussion

According to Geosport, in its pleadings it alleged that it was the

lowest responsive and responsible bidder and that it complied with all lawful

requirements of the bid specifications. Based upon these allegations, which

were required to be accepted as true, GeoSport maintains that it stated a

cause of action against the City and Musco for the arbitrary rejection of its

bid and the wrongful award of the contract to Musco.

First, GeoSport asserts that it stated a cause of action for improperly

rejecting its bid in violation of the PBL. GeoSport also alleged that the bid

documents requiring bidders not using Musco products to furnish the City

with a revised electrical distribution plan signed by an electrical engineer

licensed in Louisiana, at the bidder’s expense, constituted a “pay to play”

provision which is prohibited by the PBL. GeoSport alleged that requiring

bidders not using Musco products to provide additional information about its

products on a checklist prepared by Musco created an unlawful closed

specification in violation of La. R.S. 38:2290 of the PBL.

Next, GeoSport claims that it stated a cause of action for the wrongful

denial of an informal hearing under La. R.S. 38:2212(X), because, in

rejecting its references, the City also found it not to be a responsible bidder,

in addition to finding that its bid was not responsive.

According to the defendants, GeoSport knew about the alleged

violations of the PBL when it received the bid documents and before it bid

on the project. They argue that, under Airline, supra, GeoSport was required

to raise any objections it had at that time, before the bids were received and

opened. They also cite Section 25 of the Public Works Standard Terms and

Conditions, quoted above, to argue that GeoSport was required to raise all
18

objections to the bidding process within five working days of the opening of

the bids. The defendants urge that, because GeoSport failed to timely object

to the requirements of the bid documents, it waived its objections, and

therefore, it has no cause of action.6 The City claims it did not find that

GeoSport was not a responsible bidder, and, therefore, the company was not

entitled to a hearing under La. R.S. 38:2212(X).

Although an unsuccessful bidder does not have a cause of action in

contract against the public body, the lowest responsible bidder does have a

cause of action to timely challenge the rejection of his bid and to compel the

award of the contract to him. An unsuccessful bidder may sue to enjoin the

public body from executing the contract or to set aside the award of the

contract to another bidder when the public body acted arbitrarily in selecting

the successful bidder. An unsuccessful bidder on a public contract must

attempt to timely enjoin the execution or performance of a contract when the

facts necessary for injunctive relief are known or readily ascertainable by the

bidder; otherwise, the bidder is precluded from recovering damages against

6
We note that the defendants filed exceptions of no cause of action and no cause
of action and/or prescription, arguing that GeoSport waived its right to assert claims
arising from the rejection of its bid because the claims were not raised timely. On an
exception of no cause of action, no evidence may be presented. On an exception of
prescription, evidence may be considered. See La. C.C.P. art. 931. Here, no evidence
was admitted. Generally, waiver, laches, and extinguishment of an obligation are
affirmative defenses, and as such, they are defenses to the merits and not objections
which are raised in exceptions. Hartman Enterprises, Inc. v. Ascension-St. James Airport
& Transp. Auth., 582 So. 2d 198 (La. App. 1 Cir. 1991), writ denied, 582 So. 2d 195 (La.
1991). However, the jurisprudence includes numerous cases, including Hartman, in
which waiver of the right to object to the award of a bid has been raised through the
exception of no cause of action.

We are aware of this court’s opinion in Lathan Const., LLC v. Webster Parish
School Bd., 53,873 (La. App. 2 Cir. 4/14/21), ___ So. 3d ___, rendered on the same date
as this opinion, dealing with an exception of prescription. The defendants argued that a
disqualified bidder for a public works project failed to timely seek injunctive relief from
the rejection of its bid. Lathan is distinguishable from the present case in that the
disqualified bidder in Lathan did not file a petition seeking injunctive relief until 37 days
after notice that its bid had been rejected. Further, the disqualified bidder did not possess
the necessary asbestos abatement license.
19

the public body. Airline, supra; Webb Const., Inc. v. City of Shreveport,

30,491 (La. App. 2 Cir. 5/13/98), 714 So. 2d 119.7

The defendants cite the cases of Apolinar v. Prof’l Const. Servs., 95-

0746 (La. 11/27/95), 663 So. 2d 17; Gilchrist Const. Co. LLC v. East

Feliciana Par. Police Jury, 2012-1307 (La. App. 1 Cir. 7/11/13), 122 So. 3d

35; and Angelo Iafrate Const., L.L.C. v. State ex rel. Dep’t of Transp., 2001-

2761 (La. App. 1 Cir. 5/10/02), 818 So. 2d 973, writ denied, 2002-2142 (La.

11/8/02), 828 So. 2d 1125, in support of their argument that an unsuccessful

bidder on a public works project cannot wait to challenge alleged

deficiencies in the bidding process until after its bid has been rejected as not

responsive. These cases are distinguishable on the facts from the present

case.

In Apolinar v. Prof’l Const. Servs., supra, the bid requirements for a

public works project required payment of overtime wages. The low bidder

was Professional Construction Services (“PCS”) and that company was

awarded the work. The plaintiff was an employee of PCS who sued the

company for overtime wages. PCS filed a motion for summary judgment,

arguing, among other things, that the bid specification requiring the payment

of overtime wages violated the PBL. The Louisiana Supreme Court found

that PCS was not entitled to raise the issue at that point. The supreme court

reasoned that PCS did not qualify its bid or object to the provision prior to

the time of bidding. It had waived any objections to the terms of the bid

specifications and would not be heard to argue that it need not pay overtime

7
As observed in Webb, supra, Airline, supra, was decided prior to the 1990
amendment of La. R.S 38:2220(B), but the rationale of Airline was essentially unchanged
by the amendment. See also Hard Rock Const., Inc. v. Par. of Jefferson, 96-797 (La.
App. 5 Cir. 1/28/97), 688 So. 2d 134.
20

wages that every other bidder agreed to pay at the time the bids were

submitted.

In Apolinar, the very essence of the dispute is distinguishable from the

present case. There was no dispute between bidders. The plaintiff was an

employee of the successful bidder and was seeking to enforce the

requirements of the bid concerning payment of overtime wages. There was

no indication of how long after the award of the contract the employee

brought his suit.

In Gilchrist Const. Co. LLC v. East Feliciana Par. Police Jury, supra,

the plaintiff’s bid was rejected as nonresponsive because it was not

submitted in triplicate. The plaintiff filed a suit for an injunction on the

issue of not filing the bid in triplicate, but also sought an order that all bids

be rejected for a violation of the PBL, based upon the argument that the

police jury failed to provide potential bidders with the option to submit bids

electronically as required by the PBL. The plaintiff did not seek an

injunction based on the violation of the PBL. The suit for injunctive relief

was eventually dropped, but the plaintiff continued to seek a declaration that

the award of the contract was null and void for failure to provide the option

to submit bids electronically. The first circuit found that the failure to

comply with the PBL had nothing to do with the reason the plaintiff’s bid

was rejected. The plaintiff never sought injunctive relief for the alleged

violation of the PBL. Because the plaintiff knew of this alleged violation at

the time the bids were advertised and failed to seek injunctive relief at that

time, the first circuit affirmed the trial court judgment finding that the

plaintiff had no right of action. Gilchrist is distinguishable in that the

violation of the PBL argued by the plaintiff in that case had nothing to do
21

with the reason the bid was rejected. Further, the plaintiff in Gilchrist never

sought injunctive relief as required by La. R.S. 38:2220.

In Angelo Iafrate Const., L.L.C. v. State ex rel. Dep’t of Transp.,

supra, the plaintiff submitted the lowest bid, which was later determined to

be irregular for failure to replace forms in the bid proposal with forms

provided to bidders in an addendum. The record showed significant

problems in informing the plaintiff of the addendum. However, the plaintiff

calculated its bid according to the addendum. The plaintiff sought an

injunction, mandamus, and a judgment awarding it the contract. After the

contract was awarded to another bidder, the plaintiff amended its petition to

claim damages. The trial court granted a partial summary judgment in favor

of the plaintiff, finding that its error in using the wrong bid form was not

substantive. The first circuit reversed, noting the problems with informing

the plaintiff of the addendum, and found that, under the PBL, the state

should have postponed the opening of bids for seven days or should have

rejected all bids. However, the first circuit determined that the plaintiff’s

submission of its bid using the addendum and its failure to object to the

failure to postpone the bids, was fatal to its claim, citing Apolinar, supra.

The facts of Angelo Iafrate Const., L.L.C. v. State ex rel. Dep’t of

Transp., supra, are distinguishable from the present case. In Angelo Iafrate,

the case was decided on a motion for partial summary judgment, not an

exception of no cause of action, and the dispute itself involved a question of

whether the unsuccessful bidder was actually informed of changes in the bid

requirements. The facts of that case showed that the unsuccessful bidder

was aware of the changes and calculated its bid according to them, although

the wrong form was used.
22

In this case, the arguments of the parties and the oral reasons for the

trial court judgment indicate that the merits of the claims made by GeoSport

were improperly considered and ruled upon by the trial court when it

dismissed GeoSport’s suit. Resolution of the issues raised in the exceptions

filed in this case depends, not upon a factual determination of whether

GeoSport’s bid was responsive, if there were any violations of the PBL, or if

the company was entitled to an informal hearing, but rather upon whether its

objections were timely raised and were not waived. This was the narrow

issue before the court. The determination of whether injunctive relief was

timely sought is a fact-specific inquiry and the facts are to be evaluated

under the guidelines set forth in Airline, supra.8

Based upon the facts and circumstances of this particular case,

evaluated under the factors set forth in Airline, supra, we find that

GeoSport’s petition for injunctive relief was timely and it did not waive its

right to bring its claims against the defendants. In its petition, GeoSport

alleged that its bid was rejected due to the City’s violation of the PBL by

using a closed specification which allowed only a Musco product to be used

on the projects and by imposing a “pay to play” provision on bidders that did

not use Musco products. GeoSport also essentially urged collusion between

the City and Musco to ensure that Musco won the bid and only a Musco

product could be used. Although the defendants argue that GeoSport was

required to seek injunctive relief either before the bidding process or within

8
For an example of cases finding that injunctive relief was sought in a timely
manner, see State Mach. & Equip. Sales, Inc. v. Livingston Par. Gravity Drainage No. 5,
98-1207 (La. App. 1 Cir. 6/25/99), 742 So. 2d 26; Boh Bros. Const. Co., L.L.C. v. Dep’t
of Transp. & Dev., 97-0168 (La. App. 1 Cir. 7/14/97), 698 So. 2d 675, writ denied, 97-
2113 (La. 11/21/97), 703 So. 2d 1309; and G.D. Womack Trenching, Inc. v. Maitland
Water Sys., Inc., 2003-1579 (La. App. 3 Cir. 4/7/04), 870 So. 2d 579.
23

five days of the opening of the bids, it was not until GeoSport’s bid was

actually rejected that the company became aware that the City was arguably

violating the PBL in awarding the contract. The bids were opened on

August 6, 2019, and GeoSport had ten days to make post-bid submissions

regarding the product it intended to use. On August 23, GeoSport was

informed by the City that its bid was found to not be responsive. Also

notably, on that date the City informed GeoSport that it had five working

days from the date of the rejection of its bid to formally protest that finding.

On August 27, 2019, two working days after the rejection letter,

GeoSport informed the City of its intent to protest and asked for an informal

hearing under La. R.S. 38:2212(X), claiming that, due to the rejection of its

references, it was also found not to be a responsible bidder. On August 28,

the City rejected the request for an informal hearing and advised GeoSport

that any further communications should be made to the City’s attorney. On

August 30, GeoSport contacted the City’s attorney, again asked for an

informal hearing, and the company set forth its objections to the alleged

deficiencies resulting in the rejection of its bid. On September 4, three

working days later, the City’s attorney denied the request for an informal

hearing. On that date, the City also awarded the contract to Musco. On

September 10, four working days later, GeoSport filed this suit for injunctive

relief, asking for a hearing at the court’s next available date. On September

11, the contract with Musco was fully executed and on September 12, the

contract was recorded.

The timeline in the present case shows that GeoSport’s suit for

injunctive relief was timely. After the bid was rejected, GeoSport became

aware that the City would not accept the use of anything other than a Musco
24

product. GeoSport notified the City of its intent to protest the rejection of its

bid within two working days of the rejection of its bid. On September 10,

before the contract was fully executed or recorded, and before Musco began

work on the projects, GeoSport filed this suit and requested a hearing at the

court’s next available date. Although the hearing was continued numerous

times, these factors show that GeoSport did not delay in objecting to the

rejection of its bid. As soon as it knew that its bid had been rejected, before

the City became indebted to Musco, and before the work was commenced by

Musco, GeoSport protested the rejection of its bid and sought injunctive

relief. It did so when the grounds for attacking the contract between the City

and Musco were knowable and when corrective action could have been

taken by the City. The addition of Musco as a defendant occurred

approximately one month after the execution of the contract and, under the

facts of this case, was timely. Whether the City wrongfully rejected

GeoSport’s product and ultimately rejected its bid on that basis, or whether

the City and Musco engaged in wrongful conduct under the PBL, are issues

to be resolved in court at a later date.

Even though timely apprised of a serious challenge to the rejection of

GeoSport’s bid, the City immediately proceeded to execute the contract with

Musco and to begin work on the projects. Evaluated according to the factors

outlined in Airline, supra, GeoSport’s petition for injunctive relief was

timely and its cause of action for injunctive relief and to obtain an informal

hearing under La. R.S. 38:2212(X) were not waived.

In reaching this conclusion, we are not expressing any opinion on the

merits. We are not finding that the PBL was violated, that GeoSport’s bid

was wrongfully rejected, or that GeoSport was entitled to an informal
25

hearing under La. R.S. 38:2212(X). Rather, we simply find that GeoSport

has alleged sufficient facts to state a cause of action and, because its suit for

injunctive relief was timely, its cause of action has not been waived. The

trial court judgment on this issue is reversed.9

SECOND AMENDED PETITION

GeoSport argues that the trial court erred in failing to grant its motion

to file a second amended petition. It contends that, because the exceptions

should not have been granted, the trial court erred in finding that the motion

to file the second amended petition for damages and attorney fees was moot.

This argument has merit.

9
Although we have found that the exceptions were improperly granted, we deem
it necessary to address one of GeoSport’s contentions. La. R.S. 38:2212(B)(1) states that
the provisions and requirements of the PBL and the bidding documents cannot be waived
by any entity. GeoSport has argued, both below and before us, that a defendant’s
violation of a substantive requirement of the PBL cannot be waived. According to
GeoSport, La. R.S. 38:2212(B)(2) provides an exclusive list of 12 items that bidders may
be required to submit. GeoSport cites Durr Heavy Const., LLC v. City of New Orleans,
2016-609 (La. 4/15/16), 189 So. 3d 384, and Leblanc Marine, L.L.C. v. Div. of Admin.,
Office of Facility Planning & Control, 2019-0053 (La. 10/22/19), 286 So. 3d 391, in
support of its arguments.

This argument is not persuasive. The list in La. R.S. 38:2212(B)(2) deals with
items that can be required at the time of the bid opening. La. R.S. 38:2212(B)(3)
contemplates the requirement of other documents after the opening of the bids.
Durr and LeBlanc are distinguishable from the present matter. The language cited by
GeoSport in Durr is found in a concurrence to a writ grant and discusses the information
that may be required of bidders at the opening of bids. The language quoted by
GeoSport, regarding the limits on information that can be required to evaluate a bid’s
responsiveness, must be considered in context.

LeBlanc dealt with bid instructions under La. R.S. 38:2212(B)(5), concerning the
manner in which a person’s authority to bid could be established. The PBL set forth
three methods to establish that authority. The bid instructions considered in LeBlanc
allowed only two methods. Because the bid instructions in that case were more
restrictive than the statute, they were invalid.

In our view, GeoSport has not established that, because the requirements of the
PBL cannot be waived, there are no time limitations to objecting to violation of the PBL.
The law contemplates that objections to the bid process will be raised through suits for
injunctive relief. La. R.S. 38:2220. The timeliness of seeking that relief is evaluated
under the jurisprudential rule set forth in Airline, supra. As discussed above, we have
found that GeoSport’s claims were timely asserted.

26

Because we find that the trial court erred in granting the exceptions

and dismissing GeoSport’s suit, the trial court also erred in finding that

GeoSport’s motion to file a second amended petition was moot. The trial

court’s decision on this issue is reversed.

CONCLUSION

For the reasons stated above, we reverse that portion of the trial court

judgment sustaining the exceptions of no cause of action and no cause of

action and/or prescription filed by the defendants, the City of Bossier City

and Musco Sports Lighting, LLC, and dismissing the claims of the plaintiff,

GeoSport Lighting Systems, LLC. We also reverse that portion of the trial

court judgment finding that the plaintiff’s motion for leave to file a second

amended petition was moot. We remand the matter to the trial court for

further proceedings. Costs in this court are assessed one-half to the City of

Bossier City and one-half to Musco Sports Lighting, LLC.10

REVERSED AND REMANDED.

10
According to R.S. 13:5112, when court costs are assessed against a political
subdivision, such costs shall be expressed in a dollar amount in the decree of the
appellate court. Accordingly, the total amount of appellate costs in this case is $6,721.
The City of Bossier City is ordered to pay one-half this amount, $3,360.50.
27