Beaver Glass & Mirror Co., Inc. v. Board of Ed. of Rockford School Dist. No. 205, Winnebago County

• Decision Date: 09 May 1978
• Docket Number: No. 76-426,76-426
• Citation: 376 N.E.2d 377,59 Ill.App.3d 880,17 Ill.Dec. 378
• Parties: , 17 Ill.Dec. 378, 23 Wage & Hour Cas. (BNA) 948, 84 Lab.Cas. P 55,143 BEAVER GLASS AND MIRROR CO., INC., an Illinois Corporation and People ex rel. Walter Williams, an Individual, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF ROCKFORD SCHOOL DISTRICT NO. 205, WINNEBAGO COUNTY, Illinois and Members, Dick Parrott, Harold Seeber, Dr. Robert Beck, Dr. Harry Darland, David Peterson, Richard Rundquist, Mary Lou Yankaitis, Defendants, Third-Party Plaintiffs and Counter-Defendants-Appellees, v. ROCK VALLEY GLASS CO., Third-Party Defendant and Counter-Plaintiff.
• Court: United States Appellate Court of Illinois

Page 377

376 N.E.2d 377

59 Ill.App.3d 880, 17 Ill.Dec. 378,

23 Wage & Hour Cas. (BNA) 948,

84 Lab.Cas. P 55,143

BEAVER GLASS AND MIRROR CO., INC., an Illinois Corporation and People ex rel. Walter Williams, an Individual, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF ROCKFORD SCHOOL DISTRICT NO. 205,

WINNEBAGO COUNTY, Illinois and Members, Dick Parrott, Harold

Seeber, Dr. Robert Beck, Dr. Harry Darland, David Peterson, Richard Rundquist, Mary Lou Yankaitis, Defendants, Third-Party Plaintiffs and Counter-Defendants-Appellees, v. ROCK VALLEY GLASS CO., Third-Party Defendant and Counter-Plaintiff.

No. 76-426.

Appellate Court of Illinois, Second District.

May 9, 1978.

Miller & Hickey, Rockford, for plaintiffs-appellants.

Pedderson, Menzimer, Conde, Stoner & Killoren, Stephen T. Moore, Rockford, for defendants, third-party plaintiffs and counter-defendants-appellees.

RECHENMACHER, Justice.

The petitioners, Beaver Glass and Mirror Co., Inc., and Walter Williams, president of Beaver Glass (and a taxpayer within the school district), filed a petition for a writ of mandamus to compel the Board of Education of Rockford School District No. 205 (hereafter the "Board"), to assign the glass replacement contract for the school year 1975-76 to Beaver Glass; petitioners also sought $2,500 for damages to the date of the petition, although this prayer was subsequently amended to ask for more general relief. The petition was filed on August 7, 1975, and on October 2, 1975, petitioners filed a motion for a preliminary injunction to stop performance of the glass replacement contract by Rock Valley Glass Co., the successful bidder on the contract. (Rock Valley Glass Co. was also a third-party defendant and counterplaintiff in this action, but has taken no part in the appeal.) On January 15, 1976, the trial court denied the motion for a preliminary injunction and on May 20, 1976, the court denied the petition for a writ of mandamus. Petitioners appeal from the court's order of May 20, 1976.

Beaver Glass's claim regarding the 1975-76 glass replacement contract is based on section 10-20.21 of the School Code (Ill.Rev.Stat.1975, ch. 122, par. 10-20.21) which requires school boards to "let all contracts for supplies, materials or work involving an expenditure in excess of $2500 to the lowest responsible bidder * * *." The Board's action in awarding the glass replacement contract for the 1975-76 school year to the Rock Valley Glass Co., rather than Beaver Glass, was based on its interpretation of section 1 of the Prevailing Wage Law (Ill.Rev.Stat.1975, ch. 48, par. 39s-1 et seq.) which provides that:

"It is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workmen and mechanics employed by or on behalf of any and all public bodies engaged in public works, exclusive of maintenance work." (Emphasis added.)

Section 2 of the Prevailing Wage Law (Ill.Rev.Stat.1975, ch. 48, par. 39s-2) defines "maintenance work" as "the repair of existing facilities when the size, type or extent of such existing facilities is not thereby changed or increased." Beaver Glass was the lowest bidder for the school district's 1975-76 glass replacement contract, but Rock Valley Glass Co. was awarded the contract since the Beaver Glass bid did not contemplate paying glaziers the prevailing wage, as required by the bid specifications. Beaver Glass asserted that the Board's failure to award it the contract violated the requirement for awarding contracts to the "lowest responsible bidder."

The Board contends that Beaver Glass was not a "responsible bidder", citing evidence of certain problems regarding the company's performance of prior glass replacement contracts. However, Charles McAnarney, the School District Director of Purchasing, testified that he would not have sent a bid specification to Beaver Glass if he had regarded Beaver Glass as ineligible to bid, and that Beaver Glass's bid was rejected because it did not comply with bid specifications concerning the prevailing rate of wages, and not because Beaver Glass was not a "responsible bidder." The trial court found that the Board regarded Beaver Glass to be a "responsible bidder" and there is nothing in the record which would justify this court taking a different view.

Next, the Board argues that rejection of Beaver Glass's bid was mandated by the requirement that the "prevailing hourly rate" be paid on public works. In the Board's view, the glass replacement contract did not involve "maintenance work" which is excepted from the requirement of payment of the "prevailing" rate, since, due to changing regulations and building codes, "at least 50%" of the panes of glass that are replaced during the year are replaced with materials other than the kind of glass which was broken, ordinary glass being replaced with "wire glass" or "lexon and acrylic" in many instances. However, the trial court expressly held that the contract was one for "maintenance work" and we agree. The use of new materials in replacing some of the glass, from time to time, would not, in our opinion, constitute such a change in the "type or extent" of "existing facilities" as would remove this contract from the category of "maintenance work."

It is thus clear that the statutory requirement of letting bids to the "lowest responsible bidder" applied to the contract in this case and that the statute mandating payment of the "prevailing hourly rate" did not. Such conclusions point logically to the question of whether the Board could, without express statutory authority, reject the lowest responsible bidder on the grounds that the bid failed to comply with the Board's own prevailing wage requirement. In regard to this question, it is clear that a school board has only such powers as are conferred upon it by the legislature, Weary v. Board of Education (1977), 46 Ill.App.3d 182, 4 Ill.Dec. 737, 360 N.E.2d 1112; Wesclin Education Association v. The Board of Education (1975), 30 Ill.App.3d 67, 331 N.E.2d 335, and it is also evident that the governing statutes do not expressly authorize the Board to exact a "prevailing wage" requirement on maintenance contracts. In a perhaps analogous case, the court applied this rule in holding that a board of education had no right to stipulate in a contract that only union labor could be employed by the contractor. (Adams v. Brenan (1898), 177 Ill. 194, 52 N.E. 314.) Nonetheless, the Board asserts that it had discretion to require payment of the "prevailing wage" on maintenance contracts, citing Brunsfeld & Sons v. Board of Education of Chicago (1977), 54 Ill.App.3d 119, 11 Ill.Dec. 829, 369 N.E.2d 283 and Weil & Co. v. Board of Education of Chicago (1977), 49 Ill.App.3d 649, 7 Ill.Dec. 381, 364 N.E.2d 542. Both cases involved "affirmative action" requirements promulgated by the Chicago Board of Education for bidders on school contracts obviously, "affirmative action" involves considerations distinct from those attendant upon a requirement that a contractor pay the "prevailing hourly rate", and further, in each case the requirement was based upon a statute granting the Chicago Board of...