Could a Louisiana parish award a simple equipment bid immediately and accept a wholesaler's low bid?

Plain-English summary

The St. John the Baptist Parish Council requested bids for surveillance equipment to be delivered without installation. It received two bids and awarded the contract to the low bidder at the meeting where bids were opened. The unsuccessful bidder objected to the speed of the award and to the winner's status as a wholesale supplier, then asked that the low bidder be allowed to withdraw.

The 1998 attorney general opinion found no Public Bid Law violation. This was a simple procurement, and neither the complaining bidder nor council staff had identified a defect in the low bid. The law did not require a particular review interval after bids were opened. The office also said a responsive bid had to be considered regardless of whether its supplier was a wholesaler, distributor, or manufacturer.

The low bidder had not requested withdrawal; it had delivered the equipment and been paid. The office added that a hypothetical withdrawal should not have been allowed if it would make the council pay more, and said a bidder refusing to perform could be responsible for the resulting price difference.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Parish procurement officials at the time

The office found no problem with the council's immediate decision on this uncomplicated bid. It distinguished more complex procurements, for which it said taking bids under advisement could be prudent to evaluate responsibility and responsiveness.

Equipment suppliers at the time

The opinion said a wholesaler's status alone was no reason to reject a responsive bid. It also rejected the unsuccessful bidder's request for a hypothetical withdrawal of the winning bid.

Common questions

Q: Did the council have to wait before awarding the surveillance equipment bid?
A: The opinion said the Public Bid Law prescribed no particular review period. Given the simple purchase and no identified defect in the low bid, the immediate award was acceptable.

Q: Could the council disqualify the low bidder because it sold wholesale?
A: No. The office said a public entity had to consider a bid responsive to the advertised plans and specifications, whether the supplier was a wholesaler, distributor, or manufacturer.

Q: Had the winning bidder asked to withdraw?
A: No. The opinion said the winner had delivered the equipment and been paid; the withdrawal issue was raised by the unsuccessful bidder.

Q: Why did the opinion apply the Public Bid Law to a purchase below the then-mandatory bidding threshold?
A: The council had initiated this purchase under that law. The office said it would apply the law to evaluate the council's actions even though the amount was below the threshold it described.

Background and statutory framework

The parish sought delivery, not installation, of specified surveillance equipment. It chose to solicit bids even though the 1998 cost was below the then-applicable mandatory bidding threshold. The opinion applied R.S. 38:2212A(1)(a)'s responsiveness rule to the wholesaler's bid. It discussed R.S. 38:2214 and Civil Code Arts. 1994 and 1995 when addressing the hypothetical consequences if the low bidder refused to perform.

Citations and references

• R.S. 38:2212A(1)(a) (responsive bids, as quoted in the opinion)
• R.S. 38:2214 (bid withdrawal issue)
• Civil Code Art. 1994, 1995. (performance damages discussed in the opinion)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/98-0254

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

One Ar’ner~can Place
301 Ma~n Street, Suite 600
DEPARTMENT OF JUSTICE
P.O Box 94005
(ZIVIL DIVISION
TEL : (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090

70804-9005

AUGUST 251998

OPINION NUMBER 98-254

OPINION NUMBER 98-2~,
g0-A-l(c) - PUBLIC FUNDS & CONTRACTS -
Purchase of Materials & Supplies

R.S 38.2212A(1)(a), 38.2214; Civil Code Arts. 1994, 1995.
Mr. Charles Lorio, Jr.
Asst. District Attorney
Public entity need not ~le~ay award for extensive review of bids
on a sfmple procurement B~d fi’om a wholesaler, d~stdbutor or
P.O. Box 99
manufacturer must be considered by a publfc entrty if
Edgard, LA 70049
responsive to the Iohci~ation. Bidder cannot be allowed to
withdraw b=d, except under limrted c~rcumstances of RS 38.2214
Dear Mr. Lorio:

You have requested the opinion of this office on issues raised in the recent purchase of security surveillance equipment by the St. John the Baptist Parish Council (the Council).

Documents which you have provided to our office indicate that the Council sought bids for a specific list of equipment which was to be delivered, but not installed, by the vendor. Two bids were received, and the contract was awarded to the low bidder at the same meeting where bids were received and opened. The bidder who did not receive the award has complained that the bid should have not been so quickly awarded, but should have been taken under consideration for review and then rejected since the low bidder is a wholesale supplier to alarm dealers. The complainant also requests that the low bidder be allowed to withdraw its bid and that the award then be made to the complaining bidder as the sole remaining bidder.

Since this transaction was initiated under the provisions of the Public Bid Law, La. R. S. 38:2211and following, even though the cost of the procurement was well below the
$15,000 threshold at which bids are mandated, we will apply the provisions of this law. Nothing in the Public Bid Law requires that a bid, once received, be subjected to any particular review by a public body or its staff. Certainly, with a complicated procurement or public works project it would be prudent to take the bids under advisement to evaluate the responses and to determine the responsibility of the bidders and the responsiveness of their submissions. This was not such a complicated procurement, nor has any deficiency in the low bid been identified by the disgruntled bidder or the Council’s personnel. Therefore, we find no problem with the immediate decision on the bid award.

The allegation that the low bidder is identified by the other bidder as a wholesale supplier is irrelevant. Many bids on public procurements are from wholesalers, distributors and manufacturers who choose to deal directly with public entities rather than through retail dealers. Wh;~e this may be of understandable concern to dealers who traditionally handle products for such wholesalers, distributors or manufacturers, it is not a reason for a public

Page 2

Mr. Charles Lorio, Jr.
OPINION NUMBER 98-254
Page -2-

entity to refuse to consider the bid. Indeed, the Public Bid Law, R.S. 38:2212A(1)(a) would require that such a bid be considered so long as the bid is responsive to "the contract plans and specifications as advertised...".

The final issue raised by the disgruntled bidder is that the low bidder should be allowed to withdraw its bid. The documentation which you provided included no such request by the low bidder; indeed, the documents reflect that the low bidder has delivered the equipment and been paid. However, had the bidder attempted to withdraw its bid, such withdrawal should not have been allowed since the result would be that the Council would have paid a higher price for the equipment purchased. Indeed, if the low bidder had refused to provide the equipment at the price bid, established precedent would hold that bidder financially responsible for the increased price required to be paid to the next low bidder as a consequence of the low bidder’s failure to perform. R.S. 38:2214; Civil Code Art. 1994, 1995.

We would conclude that no violation of the Public Bid Law occurred in the actions discussed above. I trust that this answers your inquiry. Please let me know if we may be of further assistance in this matter.

Very truly yours,

RICHARD P. IEYOUB
ATiORNEY GENERAL

(" G~,I~.NN R,_ DUCOT~
",,.-..~ssistant Attorney General

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