When is it too late for a contractor to file a bid protest under the Louisiana Public Bid Law? The Louisiana Second Circuit Court of Appeals recently issued two decisions highlighting the factors courts consider when evaluating the timeliness of bid protest actions.
In Lathan Construction, LLC v. Webster Parish School Board and Geosport Lighting System, LLC v. Bossier City, the unsuccessful bidders for public works projects brought actions seeking injunctive relief to prevent the award of a contract to another bidder. In each case, the public entity filed a peremptory exception of prescription to dismiss the lawsuit. That’s where the similarities end. The appellate court found one bidder’s protest was untimely, whereas the other bidder had timely filed its lawsuit. The Second Circuit opinions highlight several important considerations.
In assessing the timeliness of the challenging bidders’ claims, the court in both cases cited the seminal Louisiana Supreme Court decision of Airline Construction Co., Inc. v. Ascension Parish School Board, reiterating the timeliness factors established in that case. Specifically, timeliness depends on, among other factors: (1) the knowledge possessed by the unsuccessful bidder concerning the wrongful award of the contract; (2) when the bidder acquired knowledge of the wrongful award or reasons underlying it; (3) when the public body became indebted to the successful bidder; and (4) the time period between the awarding of the contract and the completion of construction.
The Second Circuit applied these factors to each case and reached different conclusions. In Lathan, the court found that the unsuccessful bidder did not timely file suit because the project was almost completed by the time the action was brought. Conversely, in Geosport the court found that the unsuccessful bidder timely filed suit since it brought the action before the contract was fully executed or recorded and before the second-highest bidder began work on the project. The upshot of these rulings is that the timeliness of bid protest actions remains a fact-specific inquiry that depends on the particular facts and circumstances of each case.