Arthur Weil & Co. v. Board of Ed. of City of Chicago

• Decision Date: 03 June 1977
• Docket Number: No. 76-162,76-162
• Citation: 7 Ill.Dec. 381,49 Ill.App.3d 649,364 N.E.2d 542
• Parties: , 7 Ill.Dec. 381 ARTHUR WEIL & CO., Plaintiff-Appellee, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO, a body politic and corporate, Joseph P. Hannon and Louis J. Barnes, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 542

364 N.E.2d 542

49 Ill.App.3d 649, 7 Ill.Dec. 381

ARTHUR WEIL & CO., Plaintiff-Appellee, v. The BOARD OF EDUCATION OF the CITY OF CHICAGO, a body politic and corporate, Joseph P. Hannon and Louis J. Barnes, Defendants-Appellants.

No. 76-162.

Appellate Court of Illinois, First District, Fifth Division.

June 3, 1977.

Michael J. Murray, Chicago, for defendants-appellants; Richard E. Girard, Edward C. Peterson, Chicago, of counsel.

James H. Canel, Chicago, for plaintiff-appellee.

WILSON, Justice.

Following a hearing without a jury on plaintiff's petition for a writ of mandamus, an order was entered compelling defendant, the Board of Education of the City of Chicago (hereinafter "Board") to reinstate plaintiff as a competitive bidder on the Yates Elementary School plumbing contract and to award that contract to plaintiff. The only issue raised by defendants-appellants on appeal is whether the court erred in issuing the writ of mandamus. We reverse.

On August 23, 1972, the Board, pursuant to its statutory rulemaking power (Ill.Rev.Stat.1975, ch. 122, par. 34-19), established the requirement that contractors bidding on Board contracts submit with their bid an acceptable written affirmative action program (hereinafter "acceptable program") and adopted the policy of making the award of contracts contingent upon a finding that the successful bidder had an acceptable program. On April 25, 1973, the Board again exercised this power and adopted Equal Employment Opportunity Guidelines (hereinafter "Guidelines") which set forth the required contents of an acceptable program. Sometime thereafter plaintiff, a plumbing contractor, submitted a sealed bid for the plumbing work to be performed at Yates Elementary School. Accompanying the bid was an "Affirmative Action Pre-Award Survey" (hereinafter "Survey") which the Board had sent to prospective bidders and in which plaintiff had provided information concerning its affirmative action program (hereinafter "program"). Included in the Survey was an "Employment Practices Report" form; an "Affirmative Action Plan" form; a "Certification As To Equal Employment Opportunity"; and a "Certification of Nonsegregated Facilities." On the Survey's first page the Board stated that a condition precedent to consideration and/or acceptance of any bid was the submission of a written program with the bid which demonstrated the bidder's compliance with Board policy and Federal, State and local laws requiring equal employment opportunity in all aspects of employment, and stated that a condition precedent to consideration of any bid was the submission of a program which included the Employment Practices Report. The bids for the plumbing work at Yates Elementary School were opened on October 29, 1975, and plaintiff was thereafter advised that it was the low monetary bidder. However, after reviewing plaintiff's Survey, Louis J. Barnes, the Board's Director of Equal Employment Opportunity (hereinafter "Director"), decided that plaintiff's program was unacceptable. At plaintiff's request, a meeting with the Director was held on November 18, 1975. At this meeting, plaintiff explained that a minority plastering subcontractor had been employed in the past to assist plaintiff in completing its work, and stated that this subcontractor would again be employed to assist in completion of the Yates School work if plaintiff was awarded the Yates plumbing contract. Plaintiff requested the Director's permission to amend its Survey so as to have it reflect the employment of a minority plastering subcontractor. The Director denied the request. Thereafter plaintiff petitioned for a temporary restraining order preventing the Board from awarding the Yates contract to the next lowest bidder and mandamus relief compelling defendants to permit amendment of plaintiff's program information, to find its program acceptable, to reinstate it as a competitive bidder and to award it the Yates contract. The hearing on plaintiff's petition was held on December 2, 1975. No testimony was taken at the hearing and after argument of counsel appearing on behalf of the parties, the court entered the order reinstating plaintiff as a competitive bidder and awarding it the Yates plumbing contract. This appeal followed.

OPINION

Defendants contend that plaintiff's program was a part of plaintiff's bid; that plaintiff knew of and understood the Guidelines' acceptable program requirements; that plaintiff's program did not satisfy these requirements; and that plaintiff's bid was therefore unresponsive. Defendants point out that they are required by statute to utilize the competitive bidding process in awarding the contract in question and to award this contract to the "lowest responsible bidder" of those participating in the competitive bidding for the contract. (Ill.Rev.Stat.1975, ch. 122, pars. 10-20.21 and 34-21.3.) They urge that this statutory provision vests in them the discretionary power to determine whether the bids submitted for this contract are responsive and to accept or reject these bids. They submit that they properly exercised this discretionary power in rejecting plaintiff's bid and that the trial court improperly substituted its judgment for theirs in ordering them to award the contract to plaintiff. They add that plaintiff did not allege fraud in connection with rejection of its bid; that plaintiff completely failed to show they had any clear legal duty to award the contract to plaintiff; and that the court expressly recognized that there was no statutory duty to award the contract to plaintiff; therefore the court erred in issuing a writ of mandamus ordering them to award the contract to plaintiff.

As a general rule, mandamus will lie in Illinois to compel performance of a ministerial act if the relator proves that he has a clear legal right to its performance and proves that the defendant has a clear legal obligation or duty to perform the non-discretionary act. (See, e. g., People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark (1957), 12 Ill.2d 515, at 519, 147 N.E.2d 89; People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, at 243-44, 88 N.E.2d 461; People ex rel. Sanitary District of Chicago v. Schlaeger (1945), 391 Ill. 314, at 331-32, 63 N.E.2d 382; People ex rel. Rude v. County of LaSalle (1941), 378 Ill. 578, at 580-81, 39 N.E.2d 25; People ex rel. Traders' Ins. Co. of New York v. VanCleave (1899), 183 Ill. 330, 55 N.E. 698; People ex rel. Rappaport v. Drazek (1975), 30 Ill.App.3d 310, 332 N.E.2d 532.) The obverse of this rule is the general rule that mandamus will not lie in Illinois to compel the exercise of discretion or to compel the exercise of discretion in a particular manner. See, e. g., People ex rel. Atchison, Topeka & Santa Fe Ry. Co. v. Clark, 12 Ill.2d at 520-22, 147 N.E.2d 89; VanDorn v. Anderson (1905), 219 Ill. 32, at 36, 76 N.E. 53; People ex rel. Traders' Ins. Co. of New York v. VanCleave, 183 Ill. at 332-33, 55 N.E. 698; People ex rel. Rappaport v. Drazek.

Plaintiff does not expressly contend that defendants have violated their clear statutory duty to award the contract in question to the "lowest responsible bidder" by not awarding the contract to plaintiff. (See generally People v. Omen (1919), 290 Ill. 59, at 71, 124 N.E. 860; Hanson v. Mosser (1967), 247 Or. 1, at 9, 427 P.2d 97; Ill.Rev.Stat.1975, ch. 122, pars. 10-20.21 and 34-19.) Instead, plaintiff advances an abuse of discretion theory as support for its position that the court below did not err in issuing the writ of mandamus. Plaintiff contends...