Insights

Deutsch Kerrigan Article /

Tips and Potential Pitfalls for Bids on LA Public Works Projects

February 22, 2021

Brian S. Schaps

share this page

The Louisiana Public Bid Law is set forth in La. R.S. 38:2212 et. seq. The purpose of the law is to protect the taxpaying public by preventing public officials from awarding contracts on the basis of favoritism or at possibly exorbitant and extortionate prices1. For bids on public works, Louisiana now allows paper bids AND electronic bids. La. R.S. 38:2212(E)(1) provides that “[p]ublic entities shall provide, as an additional bidding option, a uniform and secure electronic system for the submittal of bids for public works requiring competitive bidding”. Thus, electronic bids are an additional bid option for bids on qualifying public works in Louisiana.

Every contractor should attempt to completely and accurately comply with the bidding instructions that are included in the bidding documents for the project. La. R.S. 38:2211(A) defines "Bidding documents" as the “the bid notice, plans and specifications, bid form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract.” Therefore, the instructions to the bidder may be contained in several different documents, and the contractor should review all of the “bidding documents” before preparing and submitting its bid.

In 2014, the Louisiana legislature amended the Public Bid Law in an attempt to clarify what information and documentation was required from bidders on public works. La. R.S. 38:2212(B)(2) provides that:

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 bid, and Louisiana Contractors License Number, and [units prices, if utilized]. (emphasis added).

Section (B)(3)(a) of the same statute then states "[t]he bidding documents shall not require any bidder, other than the apparent low bidder, to furnish any other information or documentation … any sooner than ten days after the date bids are opened." Therefore, any supplemental information beyond what is listed in Section (B)(2) of the statute may be required after the bid opening.

In Durr Heavy Const. LLC v. City of New Orleans, the Louisiana Supreme Court held in a per curiam opinion that the failure of the bidder to include a proposal number on the submission envelope, as required in the Invitation to Bid, did not make the bid non-responsive. A proposal number is not one of the twelve exclusive items required by La. R.S. 38:2212(B)(2). Former Chief Justice Bernette Johnson explained in a concurring opinion that "the Public Bid Law now provides an exclusive list of the only twelve items of information which a public entity can require bidders to provide in the ‘bidding documents’ to evaluate the bid's responsiveness2. Based on the Public Bid Law and Louisiana cases discussing bid requirements, a contractor should certainly include all of the information required by La. R.S. 38:2212(B)(2) in its bid package. If the bidding documents state that additional information or documentation shall be submitted, the contractor should also endeavor to include that information or documentation, although it may not technically be required at the time of bidding by the Public Bid Law. Bid disputes can be expensive to the contractors involved and the public entity owner. In general, a contractor should attempt to comply with all of the instructions in the bidding documents rather than later risk incurring costs defending the responsiveness of its bid.

The wide-spread use and increasing adoption of electronic bidding will also likely present several potential issues that will be reviewed and decided by courts over the next several years. Are instructions on an electronic bidding website considered “bidding documents” pursuant to the Louisiana Public Bid Law? If not, what should a contractor do if the instructions on the electronic bidding website differ from or conflict with the “bidding documents?” The answers to these questions and questions like these will depend on the specific language in the “bidding documents.”

In sum, a contractor should endeavor to prepare its bid in strict conformance with the bidding documents and the Louisiana Public Bid law. However, if a conflict or ambiguity exists regarding the bid instructions or what documents comprise the bidding documents, it’s time to call an experienced construction lawyer to guide you through the bid process and any potential bid dispute that may follow.

[1] Airline Construction Company, Inc.v. Ascension Parish School Board,568 So. 2d 1029, 1032 (La. 1990).

[2] Durr Heavy Const. LLC v. City of New Orleans,2016-609 (La. 4/15/16), 189 So.3d 384.

Firm Highlights

  • Insight

    New Tech Changing Consent Laws?

  • Insight

    Navigating Louisiana’s New Litigation Landscape: Critical Updates for Insurance Companies

  • News

    Deutsch Kerrigan Recognized in 2026 Chambers USA Rankings

    Deutsch Kerrigan is proud to announce that five of our attorneys and two of our practice areas have been recognized in the 2026 edition of Chambers USA, one of the most prestigious and trusted legal directories in the country. Ranked Practice Areas • Louisiana – Construction (Band 1) • Louisiana – Insurance (Band 2) Ranked Attorneys • Kelly Theard – Construction (Louisiana), Band 1  • Keith Bergeron – Construction (Louisiana), Band 2 • Brian Schaps – Construction (Louisiana), Band 3  • Terrence Brennan – Construction (Louisiana), Senior Statespeople • Frederic Theodore “Ted” Le Clercq – Labor & Employment (Louisiana), Band 4  Chambers USA is widely considered the leading resource for identifying top legal talent. Its rankings are the result of extensive independent research and interviews with clients and legal peers, assessing factors such as legal ability, professional conduct, client service, commercial awareness, and commitment. We are honored to be recognized among the top in our field and remain committed to delivering the high-quality service our clients expect and deserve.
  • Insight

    The Betterment Doctrine and Property Damage Claims

  • Experience

    Burnell Joseph v. Atalco Gramercy, LLC et al., No. 3:23-cv-505, United States District Court for the Middle District of Louisiana

    Bob Kerrigan and Jose Ruiz successfully secured summary judgment dismissal for their client, Velan, Inc., in a complex intentional tort and products liability act involving catastrophic injury. The plaintiff, a precipitation batch tank operator working at the Atalco alumina refinery in Gramercy, Louisiana, suffered severe and debilitating chemical burn injuries to his face, eyes, and body when he was sprayed with caustic liquor while working underneath a tank at the refinery. He claimed that the valve that controlled the flow of liquor into the tank was leaking, which allowed the tank to become filled with liquor after it had been previously verified as empty. He filed suit against Velan, Inc., the manufacturer of the valve that controlled the flow of liquor into the tank, alleging that the valve was unreasonable dangerous in accordance with the Louisiana Products Liability Act. He also filed an intentional tort claim against his employer, Atalco Gramercy, LLC, alleging that Atalco knew the valve was leaking and continued to force employees to work underneath the tank. He claimed that under these conditions, an incident such as his was substantially certain to occur. Following the close of discovery, Velan moved for summary judgment dismissal of the plaintiff’s claims was appropriate because: (1) the plaintiff’s injuries were a result of Atalco’s misuse of the valve; (2) the plaintiff lacked the expert testimony needed to prove his theory of liability under the Louisiana Product’s Liability Act; (3) the Velan valve at issue was not unreasonably dangerous as defined by the Louisiana Products Liability Act; and (4) the plaintiff was unable to prove proximate causation needed to establish his case of liability against Velan. The Hon. Brian Jackson found that under the undisputed facts presented by Velan, summary judgment was appropriate and dismissed the plaintiff’s claims against it, with prejudice.
  • News

    Deutsch Kerrigan celebrates 100 years of legal leadership across Louisiana and the Gulf Coast

  • Experience

    Summary Judgment Granted Following Successful Challenge to Plaintiff’s Expert

    Doug Vaughn and Peyton Farve obtained a dismissal of a wrongful death product liability lawsuit against an assembly line manufacturer by successfully moving to exclude the plaintiff's expert who had a perfect track record before this case and thereafter obtaining summary judgment on all claims brought by the family of a worker who died after reaching into moving machinery. The case had been pending in federal court in North Mississippi.
  • News

    Karina Shareen Named 2026 Top Young Lawyer by Louisiana State Bar Association

  • Insight

    No Mercy for Employers in Louisiana Supreme Court’s Recent Magill Decision

    In its recent per curiam opinion, Magill v. Werner Enterprises, Inc. of Nebraska[1], the Louisiana Supreme Court has foreclosed a routine defense strategy to shield employers from direct negligence claims. The high court has extended their 2022 decision in Martin v. Thomas[2], and now allows plaintiffs to pursue direct negligence claims against an employer despite the employer’s stipulation that its employee was in the course-and-scope of employment and caused the accident. Essentially, employers who fail to implement better employment practices will permit plaintiffs to ramp up potential exposure with evidence, if such exists, that heretofore they were routinely barred from introducing at trial. The Supreme Court’s Magill holding should encourage employers to update where needed their policies and procedures pertaining to hiring, training, supervising, and entrusting duties and property to employees, not only for the safety of their employees and customers in this state, but also eliminate employer’s exposure to direct negligence claims. Prior to Martin, a litigation strategy had taken shape where employers stipulated to 1) an employee being in course-and-scope of employment at the time of the accident, 2) that the employee was at fault for the accident being caused, or 3) both. By stipulating these facts, employers were largely able to exclude evidence of any direct negligence on part of the employer and/or narrow the scope of trial to only a contest of the plaintiff’s injuries. The Supreme Court in Martin held that despite an employer admitting their employee was in course and scope when the accident occurred, plaintiffs could pursue direct negligence claims against the employer—as the issue of liability had not been admitted. Accordingly, employers found success by admitting both course and scope and liability—as seen in the Western District of Louisiana’s holding in Ferguson v. Swift Transp. Co. of Arizona[3]. In Ferguson, the defendants stipulated that their employee was acting in course-and-scope at the time of the accident and their employee was 100% at fault for the accident being caused. Due to the employer’s stipulation of fault, Judge Wicks of the Western District of Louisiana held that Martin did not apply and that plaintiffs could not pursue direct negligence claims. In Magill, the Louisiana Supreme Court provided scarce reasoning for their decision. The high court simply affirmed the District Court’s expansion of the holding in Martin and that the employer’s reliance on the Western District’s Ferguson holding was a misapplication of Louisiana law. The Supreme Court also cited the decision in Tardo v. Farrell.[4] where the Fifth Circuit held that even if an employer and employee stipulate to course and scope and fault, those admissions do not eliminate direct-negligence claims because those claims remain separate issues for the trier of fact. The Fifth Circuit notably stated, “the societal decisions as to who actually pays does not change the manner of assessing fault to all parties as required by law.” This statement raises concern, as plaintiffs may now attempt to challenge employer stipulations that historically narrowed trials. The Supreme Court did not explain its reliance on Tardo, so future litigation will likely clarify the decision’s full impact. Under Magill, plaintiffs are permitted to pursue direct negligence claims against the employer despite the employer admitting that their employee was acting in course and scope at the time of the accident and their employee was 100% at fault for the accident being caused. The full effect of the Supreme Court’s decision remains to be seen. In praxis, Magill will permit plaintiffs to put on evidence of direct negligence by an employer in front of a jury who cannot assign fault—as fault has already been stipulated to by the defendants. Employers now face the practical risk that plaintiffs will encourage juries to increase damages as a form of punishment against an employer that admits fault but contests the nature and extent of the plaintiff’s injuries. Employers should use this moment to rigorously review and strengthen policies and procedures related to hiring and training in order to limit exposure when plaintiffs assert direct-negligence claims.  [1] Magill v. Werner Enterprises, Inc. of Nebraska, 2025-00892 (La. 11/12/25) [2] Martin v. Thomas, 21-01490 (La. 6/29/22), 346 So.3d 238 [3] Ferguson v. Swift Transp. Co. of Arizona, 17-1570, 2023 WL 173413 (W.D. La. Jan. 12, 2023) [4] Tardo v. Ferrell, 25-123 (La. App. 5 Cir. 5/28/25), 2025 WL 1516837 (unpublished).
  • Experience

    Successfully Defended Restaurant Operator and Food Distributor Against $50 Million Product Liability Claim

    Anne Medo successfully obtained summary judgment on behalf of a restaurant operator and food distributor in a high-stakes product liability matter involving allegations that contaminated chicken nuggets caused a customer to develop severe medical complications. The plaintiff alleged that consumption of chicken nuggets purchased from a national food chain and distributed by Deutsch Kerrigan’s clients resulted in E. coli and Shigella infections, which he claimed led to significant cardiac issues and a stroke. The plaintiff sought $50 million in damages. Prior to trial, Anne moved for summary judgment, arguing that the plaintiff could not establish the required causal connection between the alleged foodborne illness and his subsequent health conditions. Specifically, the defense highlighted the absence of expert testimony necessary to support the plaintiff’s causation theories. In support of the motion, Anne presented testimony from an infectious disease expert and a cardiologist who opined that the alleged connection between the chicken nuggets and the plaintiff’s severe medical complications could not be established. The court agreed that the plaintiff lacked sufficient evidence to prove causation and granted defendants’ motion for summary judgment, dismissing all claims prior to trial.