Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority

This litigation arises from a dispute over the public bids submitted for construction of Phase TV of the Ernest N. Morial Exhibition Hall. We granted this writ of certio-rari to determine whether the court of appeal was correct in granting Broadm-oor’s application for supervisory writs, reversing the trial court’s decision to deny the request for a preliminary injunction, and granting the preliminary injunction. After a careful review of the record and relevant law, we affirm the court of appeal’s decision.

FACTS AND PROCEDURAL HISTORY

The Ernest N. Morial New Orleans Exhibit Hall Authority (“Authority”), a political subdivision of the State of Louisiana, was organized to plan, build and operate the New Orleans Convention Center. The Convention Center was built in three 1 ^phases and consists of approximately 3.5 million square feet of exhibit halls, meeting rooms, ballrooms and ancillary facilities and spaces. On August 8, 2003, the Authority announced its intention to receive bids on the construction of Phase TV of the facility. The Authority received the following bids:

Yates/Landis $268,445,000.00

Broadmoor $275,000,000.00

McDonnelVPLC $278,235,000.00

After the bids were opened, representatives of Sizeler Architects, L.L.C. (“Sizeler”), as well as staff members of the Authority, began independent evaluations of the bids. Sizeler concluded that the Yates/Landis bid was the lowest responsive bid. The bidders were also allowed to review all of the bids.

On October 8, 2003, Broadmoor submitted a formal protest to the Authority concerning Yates/Landis’ bid. Broadmoor noted various “irregularities, deviations and omissions” in the Yates/Landis bid, including inter alia: (1) failure to include a certificate of insurance or a letter of insur-ability; (2) failure to attend pre-bid meetings and failure to purchase a full size set of bidding documents; (3) failure to submit a corporate resolution of authority. On October 10, 2003, Yates/Landis responded to Broadmoor’s complaint, essentially denying any irregularities, and stating that any alleged deficiencies are “minor and technical in nature.”

On October 15, 2003, the Construction Committee of the Authority convened to review the bids and to make a recommendation to the Authority. After hearing the presentations from the Board’s staff, the architects, Broadmoor, Yates/Landis, and members of the public, the Committee de-, cided to defer action on the bids to the full Board of Commissioners for the Authority, without making a recommendation. The |,o,Board of Commissioners met on October 22, 2003. After being informed that Senator Lambert Boissiere had requested an opinion from the Attorney General on the issue of insurance provisions within a bid and the waivability of bid requirements, the Board decided not to make a decision on the award of the contract at that time.

On October 29, 2003, the Attorney General issued an opinion, concluding, “[T]he documents which set out the requirements for the phase IV of the Convention Center required all of the bidders to attach certificates of insurance or statements of insura-bility to the bid.” The Attorney General also opined that the failure to furnish a certificate of insurance or statement of insurability is a substantive deviation from the bid requirements, which may not be waived by the Authority.

Also on October 29, 2003, Broadmoor filed a petition for temporary-restraining order, preliminary injunction, and permanent injunction, seeking to restrain and enjoin the Authority from considering and/or awarding the contract to Yates/Landis. Yates/Landis filed a petition to intervene in the action. Friseh-hertz/Fisk Joint Venture, Gallo Mechanical Contractors, Inc., subcontractors of Broadmoor, and Southeast Louisiana Building and Construction Trade Council also intervened in the action, j ¿Initially, the trial court granted the temporary restraining order. However, following a contradictory hearing, the trial court rescinded the order. Thereafter, the Authority accepted the bid of Yates/Landis as being the lowest responsive and responsible bid and sent Yates/Landis a notice of acceptance.

On November 3, 2003, the trial court held a hearing on Broadmoor’s request for a preliminary injunction. Following the hearing, the trial court denied the request, stating:

The insurance issue bothers me greatly. The requirement is that the certificate of insurance or the document of insura-bility should have been submitted. But I cannot say in light of the [American Institute of Architects] requirements that the Board was wrong in its conclusion. They were not arbitrary. They may have been wrong, but they were not arbitrary. So much for the insurance. All the other arguments are non-substantial.

Broadmoor filed an application for supervisory writs in the court of appeal. The court of appeal granted Broadmoor’s writ application, reversed the trial court’s ruling, granted the request for the preliminary injunction, and ordered the Authority to reject Yates/Landis bid as non-responsive. Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 03-1996 (La.App. 4 Cir. 12/22/03), 865 So.2d 136. The court of appeal concluded: (1) the Authority acted arbitrarily and capriciously in accepting the bid from Yates/Landis due to the failure to provide a certificate of insurance or letter of insur-ability regarding builder’s risk insurance, which constituted a non-waivable substantive deviation from the bid requirements; (2) Yates/Landis’ failure to attend the mandatory pre-bid conferences prior to bidding precluded it from being considered a qualified responsive bidder; (3) Yates/Landis’ bid was not responsive due to its failure to submit a resolution of authority for the joint | ^venture.

Yates/Landis and the Authority both filed applications for writ of certiorari. We granted both writ applications and consolidated the matters. Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 04-0211, 04-0212 (La.2/11/04), 868 So.2d 702, 2004 WL 300406.

DISCUSSION

The primary purpose of injunc-tive relief is to prevent the occurrence of future acts that may result in irreparable injury, loss or damage to the applicant. LSA-C.C.P. art. 3601. During the pen-dency of an action for an injunction, the court may issue a temporary restraining order, a preliminary injunction or both. Arco Oil & Gas Co. v. DeShazer, 98-1487 (La.1/20/99), 728 So.2d 841. A preliminary injunction may be granted pending trial on merits of a permanent injunction in order to preserve preexisting status of parties. Metro Riverboat Associates, Inc. v. Bally’s Louisiana, Inc., 97-1672 (La.App. 4 Cir. 1/14/98), 706 So.2d 553, writ denied 1998-0679 (La.5/29/98), 720 So.2d 339. The purpose of a preliminary injunction is to preserve status quo until trial on merits; on the other hand, a permanent injunction can be issued only after full trial on merits in which burden of proof is by preponderance of evidence. Louisiana Gaming Corp. v. Jerry’s Package Store, Inc., 629 So.2d 479 (La.App. 3 Cir.1993).

It is well settled under Louisiana law that the judicial branch may not ordinarily Renjoin a municipal body from acting under the guise of its legislative powers.. La. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., .586 So.2d 1354, 1357 (La.1991). However, where the threatened action of a municipal body is “in direct violation of a prohibitory law” a court of equity may enjoin the threatened action. Id. Thus, we must determine whether the Authority’s action in accepting the Yates/Landis bid as the lowest responsive bid directly violated a prohibitory law.

Louisiana’s Public Bid Law, set forth in LSA-R.S. 38:2212 et seq., is a prohibitory law founded on.public policy. La. Associated Gen. Contr., Inc., 586 So.2d at 1359; Haughton Elevator Div. v. State Division of Administration, 367 So.2d 1161 (La.1979). Pursuant to the Public Bid Law, 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. Id. A political entity has no authority to take any action which is inconsistent with the Public Bid Law. Id. at 1362.

As set forth in Acts 1977, No. 103, § 1, LSA-R.S. 38:2212(A)(1) provided in relevant part:

A.(l) All public work exceeding the sum of five thousand dollars including both labor and materials and all purchases of materials or supplies exceeding the sum of two thousand five hundred dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part.

(Emphasis added).

In 1984, the legislature enacted LSA-R.S. 38:2212(A)(l)(b) to provide, “The provisions and requirements of this Section shall not be waived by any public entity.” In 1986, subparagraph A(l)(b) was amended to provide, “The |7provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be considered as informalities and shall not be waived by any public entity.” (Emphasis added). In 1987, the statute was again amended to provide in pertinent part:

(b) The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any public entity.

The Public Bid Law requires that all public construction contracts of major importance be let to the “lowest responsible bidder.” La. Associated Gen. Contr., Inc., 586 So.2d at 1362. The term “lowest responsible bidder” does not constrain the public authority to accept the lowest monetary bid. Id.; Haughton Elevator Div., supra. Rather, the Public Bid Law vests the public entity contracting the work with wide discretion to determine bidder responsibility. Id. In determining-bidder responsibility, the public entity may look to financial ability, skill, integrity, business judgment, experience, reputation, quality of previous work on contracts, and other similar factors bearing on the bidder’s ability to successfully perform the contract. Id.; Housing Authority of the City of Opelousas, Louisiana v. Pittman Construction Co., Inc., 264 F.2d 695, 698 (5th Cir.1959). See also Cooper & Horton, Competitive Bid RequiRements FoR Sohool DistRict Contracts, 46 Tex.B.J. 1154, 1155 (1983) (The criteria for determining bidder responsibility includes such things as experience, skill, ability, business judgment, financial capacity, integrity,, honesty, possession of necessary facilities or equipment, previous performance, reputation, promptness and any other factors which could reasonably be asserted as being relevant to successful performance.).

[RIn interpreting various amendments to the Public Bid Law, specifically, LSA-R.S. 38:2214, in New Orleans Rosenbush Claims Service, Inc. v. City of New Orleans, 94-2223 (La.4/10/95), 653 So.2d 538, this Court stated:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written without further interpretation in search of the intent of the legislature. (Citations omitted). The legislature is presumed to have enacted a statute in light of the preceding statutes involving the same subject matter and court decisions construing those statutes, and where the new statute is worded differently from the preceding statute, the legislature is presumed to have intended to change the law. (Citations omitted).

Rosenbush, 653 So.2d at 544.

In the instant case, the Legislature has amended LSA-R.S. 38:2214(A)(1) during the course of several legislative sessions. Initially, although the statute required bids to be made “according to the contract, plans and specifications as advertised,” the statute was silent regarding the waivability of the requirements. Thus, it appears that the Authority had discretion to waive certain requirements contained in the advertisement and the bid form.

However, in enacting the most recent amendments, the legislature has made it clear that the requirements contained “in the advertisement for bids and those required on the bid form” are not waivable. As this Court recognized in Rosenbush, supra, when the legislature added subsection (b) to LSA-R.S. 38:2212(A)(1), we presume that the legislature intended to change the law. As it stands now, the Authority cannot waive any requirements contained in its bid requirements. The language of LSA-R.S. 38:2212(A)(l)(b) is clear and unambiguous: when a public entity elects to place certain requirements in its advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date.

Moreover, since the 1987 amendment to LSA-R.S. 38:2212, the courts have 13strictly construed the requirements set forth in the statute. In Wallace C. Drennan, Inc. v. Sewerage & Water Bd. of New Orleans, 00-1146 (La.App. 4 Cir. 10/3/01), 798 So.2d 1167, citing Boh Bros. Const. Co., L.L.C. v. Dept. 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, the Court stated:

[W]e construe La.R.S. 38:2212(A)(l)(b) to preclude an entity from waiving substantive provisions and requirements of the Public Bid Law, the advertisement for bids and bid forms.... [I]t may not treat' substantive requirements of the Bid Law, the Advertisement for Bids and Bid Forms as mere informalities in order to justify its decision to waive deviation in a bid.

Drennan, 798 So.2d at 1173. Also, in Barriere Construction Co., L.L.C. v. Terrebonne Parish Consolidated Government, 99-2271 (La.App. 1 Cir. 2/18/00), 754.So.2d 1123, writ denied, 00-0801 (La.5/5/00), 761 So.2d 546, the court stated:

The statutory requirements, advertisement requirements, and bid form requirements, including those included by reference to other documents, must be completely and accurately observed. The Public Bid Law could not be more clear in stating that a bidderis failure to comply with every detail can invalidate the bid. The consequences of such defects should be on the bidder who prepares the bid.

Barriere, 754 So.2d at 1127.

With these precepts in mind, we now turn to an examination of the record to determine whether the facts support the court of appeal’s conclusion that the trial court erred in denying Broadmoor’s request for an preliminary injunction.

Builders’ Risk Insurance

In this case, the bid documents, as well as the plans and specifications used during the bid process, were prepared by Sizeler Architects, L.L.C., pursuant to a professional services contract with the Authority. Article 14 of the bid instructions state:

|1014.1 Bidders shall deliver Certificates of Insurance or statement of insur-ability acceptable to the . Owner, with their bids, to demonstrate compliance with Article 11 of the Supplementary Conditions.

14.2 Failure of the Successful Bidder to deliver said Certificates or statement of insurability with the Bid may result in the Bid being deemed incomplete and non-responsive. In the event of such failure, the Owner reserves the right to offer the Contract to the next lowest responsive bidder or re-advertise the project to request a completely new set of bids.

The Supplementary Conditions contained in the bid documents at issue derive from a document prepared by the American Institute of Architects, the ALA A-201 General Conditions. The section of the bid documents entitled “General Conditions,” provides:

A. General Conditions: A.I.A. Document A201, General Conditions of the Contract for Construction — 1997 Edition, Articles 1 through 16 inclusive, of the American Institute of Architects, are the General Conditions of this Contract and are bound into this Project Manual following this page.

B. Contractor’s Responsibility: The Contractor shall acquaint himself with the provisions of the General Conditions and notify all subcontractors, suppliers and other parties, individuals and agencies engaged in the Work as to their contents.

C. Contractual Adjustments: No contractual adjustments will be permitted for failure of the Contractor to fully acquaint himself and other interested parties with the conditions of A.I.A. Document A201.

* * *

Article 11 of the Supplementary Conditions sets forth the insurance and bonds that must be obtained by the contractor. Section 11.1 sets forth the requirements for contractor’s liability insurance. Section 11.1.4.1 provides, “Certificates of Insurance |nof Affidavit acceptable to the Owner shall be submitted to Owner with the bid, as specified in the Instructions to Bidders.” (Emphasis added). Section 11.3 requires the Contractor to purchase and maintain property insurance, which includes “ ‘all risk’ (as defined in the policy form) insurance for physical loss or damage in the amount equal to the Contract Sum ...,” which is also known as builders’ risk insurance..

Additionally, Exhibit Number 2 of the bid form stated in pertinent part:

BIDDER SHALL ATTACH INSURANCE CERTIFICATE OR STATEMENT OF INSURABILITY FROM BIDDER’S INSURER TO THIS PAGE. IF STATEMENT OF INSURA-BILITY IS UTILIZED, INSURER SHALL STATE THAT INSURANCE COVERAGES REQUIRED BY THE BID DOCUMENTS WILL BE PROVIDED AND THAT THE REQUIRED CERTIFICATE WILL BE ISSUED TO THE BIDDER WITHIN EIGHT (8) CALENDAR DAYS AFTER INSURER IS NOTIFIED BY BIDDER OF AWARD. THE BIDDER SHALL BEAR THE RESPONSIBILITY OF NOTIFYING THE INSURER REGARDING ITS SELECTION OF CONTRACT AWARD AND IT IS THE RESPONSIBILITY OF THE BIDDER TO DELIVER THE REQUIRED CERTIFICATE TO THE OWNER WITHIN TEN (10) CALENDAR DAYS AFTER RECEIPT OF “NOTICE OF AWARD” (TWO (2) CALENDAR DAYS AFTER RECEIVING CERTIFICATE FROM INSURER).

BIDDER SHALL ATTACH A COPY OF ITS INSURANCE CERTIFICATE OR STATEMENT TO THIS PAGE, SIGN THIS PAGE, DATE IT AND INCLUDE THIS PAGE WITH THE BID

Addendum Number 10 to the bidding documents provides in part: .

|1?It is called to the bidders’ attention that in Article 11 of the General Conditions, the insurance certificate must name [the Authority] and ... New Orleans Public Facilities Management, Inc. and others as additional insureds. Bidder’s certificate of insurance shall include the named insureds and must indicate the waiver of subrogation required by Article 11 of the General Conditions. The insurance company selected by bidder must have an A.M. Best Insurance rating of A-VI.

In support of its contention that builders’ risk insurance was not required to be submitted with the bid, the Authority relies first on an affidavit of Ian Thompson, a principal of Sizeler Architects. Mr. Thompson attested that he' “prepared the Bid Specifications, Invitation to Bid, Instructions to Bidders, Bid Form and all other documents relative to the bids sought by the Authority on the Phase IV Project.” Mr. Thompson also stated that in his “professional judgment,” Yates/Lan-dis “complied fully and completely and in all substantive respects” with the bid documents. He further. affirmed that Yates/Landis “complied fully and . completely and in all substantive respects with all of the insurance requirements of the Bid Documents.”

Additionally, Billy Sizeler of Sizeler Architects testified before the Construction Committee of the Authority that “it is pretty much an industry standard, that a contractor is not required to present a builders risk insurance [certificate] at the time of the bid.... It’s a standard industry practice that within ten days after the bids are received that the contractor has that time to present a builders risk insurance policy to the owner.” According to Mr. Sizeler, only a certificate of general liability insurance is required to be submitted with the bid. He stated that Article 11.3 “does not state that a eextificate of insurance shall be presented to the owner with the bid.”

Moreover, a Bid Tabulation Form prepared by Sizeler in connection with its review of the bids, provides in part:

Broadmoor, LLC

COMMENTS:

113A1I required Insurance Certificates submitted with bid along with evidence of insurability for Builder’s Risk.

McDonnel/PCL, a Joint Venture

COMMENTS:

Evidence of insurability for all insurance submitted with bid.

Yates/Landis, a Joint Venture

COMMENTS:

All required Insurance Certificates

submitted with bid. Builder’s Risk not included, however, Builder’s Risk is not required to be submitted with bid.

As stated above, the conditions mandating the procurement of builders’ risk insurance were included in the bid documents prepared by Sizeler. The bid form specifically stated that the bidder was required to attach the insurance certificate or statement of insurability to the form. The form further provided that if a statement of insurability was provided, then a statement from the insurer, attesting that the required certificate of insurance would be issued within eight days, was required to be attached as well.

Furthermore, Article 14 of the bid instructions required a certificate of insurance or statement of insurability to be submitted along with the contractors’ bids. Article 11.3 of the supplementary conditions required the contractors to purchase and maintain builders’ risk insurance. When the two provisions of the bid requirements are read in para materia, the plain language of the requirements reveals that documentation in the form of a certificate of insurance or a statement of insura-bility is required to show that the requirements of Article 11 will be met. Pursuant to the terms of Article 14, as well as the instructions included on the bid form, the insurance documentation is required to be submitted along with the bid. Consequently, all bidders were required to either obtain a certificate of builders’ risk insurance, or obtain 114a statement of insurability regarding the builders’ risk coverage and submit it along with the bid documents. Pursuant to LSA-R.S. 38:2212(A)(l)(b), the provisions required on the bid form “shall not be waived by any public entity.”

Moreover, even if the provisions of Article 14 and Article 11 are somehow construed to be ambiguous, Article 4, Section 4.5 of the bid instructions provides, “Should there be any discrepancy between any of the information contained in these Documents, the more stringent requirement(s) shall govern.” In this case, the more stringent requirement would be the requirement that the certificate of insurance or the statement of insurability be delivered with the bid. Therefore, we find that the failure of Yates/Landis to comply with the mandate constitutes a substantive deviation from the bid requirements which cannot be waived, neither expressly nor implicitly, by the Authority or its architect.

Resolution Authority

Exhibit Number 9 of the Bid Form provides:

BIDDER SHALL ATTACH JOINT VENTURE AFFIDAVITS TO THIS PAGE ■ SIGN, IT DATE IT AND SUBMIT IT AS PART OF BID

IF THIS FORM IS NOT APPLICABLE, BIDDER MUST SIGN AND DATE THIS PAGE, MARK IT “N/A”, AND SUBMIT THIS PAGE WITH BID.

Also, the record contains a document entitled, “Addendum No. 10 — September 23, 2003.” The document, generated by Sizeler and addressed to all holders of the bid documents, states in part:

This Addendum forms a part of the Contract Documents |1sand modifies the original Bidding Documents dated August 8, 2003. The contents of this Addendum shall be included in the Contract Documents when the Agreement is executed. Changes made by this Addendum take precedence over the Documents of earlier date.

The addendum contains, inter alia, responses to various pre-bid questions which had been submitted to Sizeler. Included in the addendum was the following question and answer:

How is the bid to be executed by a joint venture? What documentation will be required by the owner to verify authority of the person executing the document on behalf of the joint venture?

Owner answer: If the Joint Venture is in the form of an entity separate from either of the venture partners, a resolution from that entity is required. If the joint venture is ■ not a separate entity, the bidder must provide a'resolution from all joint ventures authorizing the signature of on the bid forms.

In Stafford Construction Co. v. Terrebonne Parish School Board, 560 So.2d 558 (La.App. 1, Cir.1990), the School Board advertised for bids to perform renovations and additions to two schools located in the parish. The contract was awarded to the lowest bidder. Stafford Construction Company (“Stafford”), the second lowest bidder, sought to enjoin the School Board and to nullify the bid submitted by the lowest bidder, alleging that the lowest bidder’s bid package did not include a corporate resolution authorizing the signing of the proposal or bid. The court, citing LSA-R.S. 38:2212 and LSA-R.S. 38:2220, concluded that thé failure of j1fithe successful bidder to attach a bid form corporate resolution authorizing signing of the proposal or the bid was an error of substance, rather than of form, and rendered the bid null and void.

Yates/Landis does not dispute that it is a separate entity from W-G. Yates & Sons Construction Company (‘Yates Construction”) and Landis Construction Company, L.L.C. (“Landis Construction”). Yet, the record does not contain a.resolution from the Yates/Landis joint venture, as required by the bidding documents. Rather, the record reveals that Yates/Landis’ bid contained two separate corporate resolutions, one from Yates Construction and one from Landis Construction. Neither of the resolutions submitted mentioned the joint venture, and there was no documentation submitted to verify who was authorized to act on behalf of the joint venture. Therefore, we find that the court of appeal correctly concluded that the failure to submit the resolution along with the bid constituted a failure to comply with the bid requirements.

Attendance at Pre-Bid Conferences

|17LSA-R.S. 38:2212(A)(l)(b) provides that the provisions and requirements stated in the advertisement for bids may not be waived. Moreover, courts have found that the failure to attend a mandatory pre-bid meeting resulted in the disqualification as a bidder. Schaff Bros. Contrs. v. Jefferson Parish School Bd., 94-177 (La.App. 5 Cir.7/26/94), 641 So.2d 642; Gibbs Construction Co., Inc. v. Bd. of Sup’vrs of L.S.U., 447 So.2d 90 (La.App. 4 Cir.1984.). In Schaff, the Jefferson Parish School Board advertised for bids for replacing the air conditioning chiller units at one of its schools. The advertisement for bids stated, “A Mandatory Pre-Bid Meeting will be held.... ” Further, the bid instructions stated that attendance at the meeting was mandatory. No representative of Schaff Bros. Contractors, Inc. (“Schaff’) was in attendance at the meeting. Schaff submitted a bid which was nearly $6,000 lower than the next lowest bid. The School Board’s architect recommended rejecting Schaff s bid for failure to attend the pre-bid meeting. Following a hearing to contest the architect’s recommendation, the Board determined that it would not waive the requirement of attendance at the pre-bid meeting, and therefore, would not consider the bid submitted by Schaff. Schaff then sought to enjoin the School Board from awarding the contract to the next lowest bidder and for damages. The court of appeal upheld the School Board’s actions, stating:

There is no question here that the advertisement, as well as the bid package itself, contained the requirement that bidders attend the pre-bid meeting. Schaff did not attend the meeting and therefore did not “bid” according to the specifications as advertised. In this circumstance, we find that its “bid” was properly not considered.

Schaff Bros. Contrs., 641 So.2d at 644.

In this case, the Advertisement for Bids provided in relevant part:

Two Pre-Bid Conferences will be held at the offices of Sizeler Architects ... on August 22, 2003, at 10:00 AM and on September 5, 2003, at 10:00 AM. Attendance is 11Smandatory ....

Additionally, the transcript/minutes of the pre-bid conference held on August 22, 2203 reflects that a representative of the Authority opened the meeting by stating, “This is the first one of two. Both are mandatory attendance.”

Broadmoor contends that Yates/Landis was not represented at the pre-bid conferences, as the joint venture was not in existence at the time of the conferences. Conversely, Yates/Landis asserts that a representative of the joint venture attended both conferences, as the Yates partner attended both pre-bid conferences, and the Landis partner attended one of the two. The court of appeal concluded:

It is clear that at the time of the pre-bid meetings and the purchase of the bidding materials, the Yates/Landis joint venture did not exist. Thus, there could not be a representative from the joint venture at the pre-bid meetings. The question then becomes is Yates/Landis, as a joint venture, disqualified as a responsive bidder because it did not attend the meetings and purchase the bidding documents as a joint venture?

The law on joint venture provides that partners in a joint venture may act on behalf of the joint venture. La. C.C. article 2814; Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159 (La.App. 3 Cir.1990); Smith v. Lonzo, 2002-1053 (La.App. 3 Cir. 2/5/03), 838 So.2d 918. However, the joint venture did not exist at the time of the meetings. Thus, the actions of Yates cannot be construed as acting on behalf of the joint venture. As Yates/Landis, a Joint Venture, - did not attend the mandatory pre-bid meetings, it could not be a qualified responsive bidder.

Since the essential elements of a joint venture and a partnership are the same, joint ventures are generally governed by partnership law. Latiolais v. BFI of Louisiana, Inc., 567 So.2d 1159 (La.App.3 Cir.1990). LSA-C.C. art. 2801 defines “partnership” as follows:

[A] juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or | ^commercial bénefit.

Joint ventures arise only where the parties intended the relationship to exist, and they are ultimately predicated upon contract either express or implied. Smith v. Lonzo, 02-1053 (La.App. 3 Cir. 2/5/03), 838 So.2d 918; Pillsbury Mills, Inc. v. Chehardy, 231 La. 111, 124, 90 So.2d 797, 801 (1956), citing Daspit v. Sinclair Refining Co., 199 La. 441, 6 So.2d 341 (1942).

The Joint Venture Agreement between Yates and Landis was formerly executed on September 12, 2003, a week after the second mandatory pre-bid conference was held. However, Yates/Landis contends that the joint venture was formed prior to the date of the written agreement. In fact, the. attendance sheet from the conference held on September 5, 2Ó03 reveals that Jim Lewis signed in as a representative of Yates/Laridis. Nevertheless, it is undisputed that no one signed in as a representative of the Yates/Landis Joint Venture pre-bid conference held on August 22, 2003. The attendance sheet from that conference reflects that Mr. Daniels signed in as a representative of Yates Construction, and no one from Landis Construction was in attendance. While we acknowledge that no express contract is required to form a joint venture, there is nothing in the record to support the contention that Mr. Daniels attended the first pre-bid conference as a representative of Yates/Lan-dis. Accordingly, we affirm the court of appeal’s conclusion that the joint venture failed to comply with the bid requirement that.all bidders were required to attend two mandatory pre-bid conferences.

CONCLUSION

For the foregoing reasons, we affirm the court of appeal’s conclusion that the Authority impermissively waived the requirements regarding builders’ risk insurance, attendance at pre-bid conferences, and submission of a resolution concerning the joint 1 ¡^venture, and it abused its discretion when it selected Yates/Landis’ bid as the lowest responsive bid. Accordingly, the decision to grant the preliminary injunction is affirmed, and the Authority is ordered to reject the Yates/Landis bid as non-responsive.

Any application for rehearing shall be filed by the end of business on Wednesday, March 24, 2004.

AFFIRMED.

VICTORY, J., dissents for the reasons assigned by Justices KNOLL and WEIMER.

KNOLL, J., dissents and assigns reasons and further dissents for the reasons assigned by Justice WEIMER.

WEIMER, J., dissents and assigns reasons.

CALOGERO, C.J., concurs and assigns reasons.

. The Authority is governed by a 12-member Board of Commissioners, all appointed.

. Pursuant to a professional services contract with the Authority, Sizeler prepared the bid documents, as well as the plans and specifications used during the bid process.

. McDonnel/PCL did not file a protest to the bids. However, on January 29, 2004, after the court of appeal's decision was rendered, and while the writ applications were pending in this Court, McDonnel/PCL filed two separate proceedings, an injunction proceeding and a writ of mandamus proceeding, requesting the same relief sought by Broadmoor.

On February 2, 2004, Broadmoor filed a motion to consolidate McDonnel/PCL's actions with this litigation and a motion to stay those proceedings pending disposition by this Court. Alternatively,. Brpadmoor requested a continuance of the hearing dates for the McDonnel/PCL proceedings to permit limited discovery. The trial court granted Broadm-oor's motion to consolidate and motion to stay. A contradictory hearing was set for February 4, 2004.

Subsequently, Broadmoor, the Authority, McDonnel/PCL, and Yates/Landis filed a joint motion to consolidate the McDonnel/PCL matter with this action and stay all proceedings, pending disposition of the instant matter.

. The interveners filed a briefs in support of Broadmoor's application for supervisory writs. The Louisiana Associated General Contractors, Inc. filed an amicus curiae brief in the court of appeal.

. The aforementioned intervenors also filed a briefs in this Court. The Louisiana Associated General Contractors, Inc. filed an amicus brief in support of Broadmoor's writ application in this Court. The Greater New Orleans Hotel and Lodging Association, the Louisiana Municipal Association, and the New Orleans Metropolitan Convention and Visitors Bureau, Inc. filed amicus briefs in support of the Authority and Yates/Landis’ position.

. In this case, the trial court held a show cause hearing and ruled on the petition for a preliminary injunction. There is nothing in the record to indicate- that a trial has been held on the permanent injunction,.

. This includes comprehensive general liability, workers' compensation and employers’ liability insurance, comprehensive automobile liability, watercraft liability arid an umbrella policy.

. Many construction contracts provide for the procurement of builders’ risk insurance ' to provide funds for the completion of the work in the event of a catastrophe. This insurance is a unique form of property insurance in that it typically covers only projects under construction, renovation, or repair. Builders' risk insurance insures against accidental losses, damages or destruction of property for which the insured has an insurable interest.

. LSA-R.S. 38:2220 provides:

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.

C.Where a judgment of nullity is rendered in any action brought by a district attorney or by the attorney general pursuant to Subsection B of this Section the district court 'may award a civil penalty not in excess of fifty thousand dollars against each offending member of the governing authority of the public entity who authorized the violation.

. The Yates Construction resolution confirmed that William Yates was authorized to execute bids on behalf of Yates Construction, and the Landis resolution attested that James C. Landis was authorized to execute bids on behalf of Landis Construction.