Bd. of Trustees v. Dept. of Prof. Reg.

• Decision Date: 31 January 2006
• Docket Number: No. 2-05-0079.,2-05-0079.
• Citation: 842 N.E.2d 1255
• Parties: The BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, COUNTY OF DU PAGE, Plaintiff-Appellant, v. The DEPARTMENT OF PROFESSIONAL REGULATION, n/k/a The Department of Financial and Professional Regulation, and Fernando E. Grillo, Director of the Department of Professional Regulation, n/k/a The Department of Financial and Professional Regulation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

842 N.E.2d 1255

The BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 502, COUNTY OF DU PAGE, Plaintiff-Appellant, v. The DEPARTMENT OF PROFESSIONAL REGULATION, n/k/a The Department of Financial and Professional Regulation, and Fernando E. Grillo, Director of the Department of Professional Regulation, n/k/a The Department of Financial and Professional Regulation, Defendants-Appellees.

No. 2-05-0079.

Appellate Court of Illinois, Second District.

January 31, 2006.

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Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Lorence H. Slutzky, Aaron G. Allen, and Scott A. Strange, Chicago, for Board of Trustees College of DuPage.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General and Diane Potts, Assistant Attorney General, Chicago, for Fernando E. Grillo and Illinois Department of Professional Regulation n/k/a Illinois Department of Financial and Professional Regulation.

Kevin R. Sido, Stephen R. Swofford, and Joseph E. Rubas, Hinshaw & Culbertson LLP, Chicago, Amicus Curiae for American Council of Engineering Companies of IL, American Institute of Architects-Illinois Council, Illinois Professional Land Surveyors Association, Illinois Society of Professional Engineers, and The Structural Engineers Association of Illinois.

Justice CALLUM delivered the opinion of the court:

I. INTRODUCTION

Plaintiff, the Board of Trustees of Community College District No. 502, County of Du Page, commenced this action seeking a declaration that the College of Du Page (College) is a "political subdivision" subject to the Local Government Professional Services Selection Act (Local Government Selection Act) (50 ILCS 510/0.01 et seq. (West 2004)), which does not expressly prohibit political subdivisions from issuing initial requests for proposals that ask interested architects, engineers, and land surveyors for information about their fees. Defendants, the Department of Professional Regulation, n/k/a the Department of Financial and Professional Regulation (Department), and Department Director Fernando Grillo, moved to dismiss on the grounds that (1) regardless of whether the College is a "political subdivision" under the Local Government Selection Act or a "state agency" subject to the Architectural, Engineering, and Land Surveying Qualifications Based Selection Act (Qualifications Based Selection Act) (30 ILCS 535/1 et seq. (West 2004)), it may not request fee information in its initial request for proposals; and (2) there was no standing or an actual controversy. The trial court accepted both grounds and dismissed the complaint.

We hold that (1) the complaint sufficiently alleges standing and an actual controversy; (2) the College is a "political subdivision" and therefore subject to the Local Government Selection Act; and (3) the Local Government Selection Act does not prohibit the College from soliciting fee or cost information before selecting the most qualified firm for negotiation. Accordingly, we reverse and remand.

II. BACKGROUND

Filed on March 3, 2004, plaintiff's complaint alleged the following. On November 5, 2002, the College received the authority via a public referendum to issue $183 million in construction bonds. The College began the process of engaging design professionals to assist in various construction projects to be completed over the next several years. In 2003, the College published requests for proposals for architectural, design management, and construction management services.

In a section entitled "format of proposals," the requests instructed that the proposals "[s]tate the price to the College on a fixed fee, not-to-exceed basis for each Phase of the project. Also, provide a cost breakdown of each element of each phase of the project." Another request for proposals stated that the "[f]ee proposal shall be a lump sum fixed fee for complete A/E services." It required a fixed-fee proposal, a breakdown of the fee by phase, an hourly rate for all personnel categories, and an estimation and breakdown of reimbursable expenses. The request instructed that the fee proposal should be submitted along with the other requested materials. In a separate section entitled "selection criteria," the requests for proposals listed the following criteria: the firm's overall professional qualifications; relevant experience in designing similar educational or other institutional facilities; knowledge of and experience with code requirements for educational facilities in Illinois; performance record on public contracts; resources appropriate for the scope of work and the project schedule; proposed staffing plan and team organization; commitment to the College's schedule; financial responsibility; quality of work as demonstrated by recent construction documents; understanding of specific issues; and design approach to the project.

On May 6, 2003, the College received a letter from Eileen McGuiness, one of the Department's attorneys, stating:

"I am in receipt of a Request for Proposal issued by [the College] * * *. I am requesting that you review * * * the Local [Government] Professional Services Selection Act * * *.

The selection process for Architects and Professional Engineers, Structural Engineers, and/or Land Surveyors differs from the bid process for construction companies. The Department enforces against its licensees violations of the [Local Government Selection Act]. The legislature has clearly articulated its intent to supplant competition for local units of government * * * in regard to the services of Architects, Engineers and land surveyors. * * * We would prefer to not have any violation to prosecute against an Architect or Professional Design Firm. I am seeking your assistance toward this end."

On June 18, 2003, the College received a letter from the executive vice-president of the Illinois Council of the American Institute of Architects. The letter expressed concern about the College's request for fee information and asserted that, under the Local Government Selection Act:

"Qualifications, not fees, are to be used as the determining factor in the initial selection process. The purpose of the [Local Government Selection Act] is to protect the owner and public interest by ensuring the selection of a firm qualified to do the work, as opposed to merely a low bidder.

* * *

A fee should not be requested to be included in the proposal, even as only one of many proposal requirements. Once a fee is included, there is a strong tendency for this fee to have undue and often decisive weight in the selection decision."

On February 13, 2004, McGuiness sent the College a letter requesting a list of the architectural or engineering firms to which the College had sent requests for proposals regarding a certain project. On February 19, 2004, the Department issued the College a subpoena duces tecum seeking proposals that architectural and engineering firms had submitted to the College for six planned projects. On February 29, 2004, McGuiness sent to Burnidge & Cassell Associates, an architectural firm, a letter stating, "if you submit price/fees as part of a submission in response to a Request for Qualifications (or sometimes mistitled Request for Proposal) you can expect to be prosecuted."

The complaint alleged that qualified and interested architectural and engineering firms have declined to submit, have threatened to withdraw, or have withdrawn their proposals because of the Department's threats to prosecute. Plaintiff requested the trial court to (1) declare that the Local Government Selection Act does not prohibit schools and units of local government from soliciting fee information in initial requests for proposals; (2) enjoin the Department from threatening schools and units of local government with subpoenas and freedom of information requests directed at responses to requests for proposals; (3) enjoin the Department from threatening design professionals with prosecution or disciplinary action for responding to solicitations that request fee proposals; and (4) quash the subpoena the Department issued against the College.

With its complaint, plaintiff filed an emergency motion for a temporary restraining order and to quash the Department's subpoena. On March 4, 2004, the trial court entered an agreed order stating that the College is not required to respond to the Department's subpoena and that the Department will not threaten prosecution against any architect, engineer, or land surveyor who includes fee information in his or her response to a request for proposals. On March 12, 2004, the Department issued an order quashing the subpoena issued against the College and sent a letter to plaintiff's counsel, stating its intention not to litigate the matter any further and that it would not issue any new subpoenas in connection with the six planned projects. Because the Department had quashed the subpoena, the trial court denied plaintiff's emergency motion for a temporary restraining order.

Defendants moved to dismiss the complaint, originally pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 2004)). Defendants then filed an amended motion to dismiss citing only section 2-615. The amended motion argued that (1) there was no constitutional basis for the complaint; (2) the Qualifications Based Selection Act and the Local Government Selection Act authorized the Department to conduct the activities of which plaintiff complained; (3) the claim was not ripe and did not allege any actual injury; and (4) the complaint asserted claims on behalf of unnamed parties. In response to the motion, plaintiff filed an amendment to the complaint, listing 14 additional planned projects for which the College will require architectural, engineering, and land surveying services.

The trial court found that the Qualifications Based Selection Act applied to the College and precluded the College from...