ROSSETTI CONTRACTING CO., INC. v. Brennan, 74 C 1934.

Decision Date10 October 1974
Docket NumberNo. 74 C 1934.,74 C 1934.
Citation382 F. Supp. 1122
PartiesROSSETTI CONTRACTING CO., INC., Plaintiff, v. Peter J. BRENNAN, Secretary of Labor, and Environmental Protection Agency, Defendants, and John McElwain, President, Board of Trustees, Hinsdale Sanitary District, DuPage County, Defendant, and Hinsdale Sanitary District, DuPage County, Defendant, and Loitz Brothers Construction Company, Inc., Intervenor.
CourtU.S. District Court — Northern District of Illinois

James E. O'Halloran, Jr., of Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., for plaintiff.

James R. Thompson, U. S. Atty., and M. B. Lowery, Asst. U. S. Atty., Chicago, Ill., for defendants Peter J. Brennan, Secretary of Labor; and the Environmental Protection Agency.

Louis R. Main, of Scofield & Main, Hinsdale, Ill., for defendants John McElwain, President, Board of Trustees, Hinsdale Sanitary District DuPage County; and Hinsdale Sanitary District, DuPage County.

Peter B. Carey and Donald V. O'Brien of O'Brien, Trittipo & Carey, Chicago, Ill., for intervenor, Loitz Brothers Construction Co., Inc.

FINDINGS OF FACT

and

CONCLUSIONS OF LAW

PERRY, Senior District Judge.

This cause came on for hearing upon the complaint of Rossetti Contracting Company, Inc., a corporation, the intervening petition of Loitz Brothers Construction Company, Inc., and the respective pleadings of all of the defendants herein. The case was tried without a jury. The court, having heard the testimony of the witnesses and argument of counsel for the respective parties and having considered all of the evidence adduced herein, hereby makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

1. On June 7, 1974 plaintiff, Rossetti Contracting Company, Inc. ("Rossetti") was the low bidder on a project entitled Hinsdale Sanitary District Interceptor Sewers, Phase 6. The first low bid was disqualified for failure to meet the terms of the bid and plaintiff became the low bidder with a bid of approximately $2,000,000.

2. While the owner of the project was the Hinsdale Sanitary District, the project was partially funded through the Federal Environmental Protection Agency ("EPA").

3. Since the project was partially federally funded, the bid documents included an Appendix A which set forth the imposed Chicago Plan as promulgated by the United States Department of Labor pursuant to Executive Order No. 11246.

4. Rossetti filed an executed Appendix A with its bid but through an inadvertent good faith error set forth its goals for minority hiring of operating engineers as 10% for the years 1974 and 1975. The actual required goals for those years were 10.2% for 1974 and 13.9% for 1975.

5. In actuality, of the total man-hours worked by operating engineers from January 1, to June 30, 1974 by Rossetti employees, 10.55% were worked by minority operating engineers. Thus, Rossetti was in actual compliance with the goals for 1974. Also, proof has shown that Rossetti's minority utilization has increased from that time to the date of trial and that at this time Rossetti is approaching the standard set for 1975.

6. After receiving an indication of tentative award from the Hinsdale Sanitary District, Rossetti's bid materials were submitted to the EPA for approval and Rossetti was informed that certain deviations from the goals had been made in the Appendix A submitted by Rossetti.

7. On July 2, 1974 representatives of Rossetti met with representatives of the EPA and, on the same date, Rossetti submitted various materials to the EPA indicating that it was in full compliance with the minority hiring goals of the Chicago Plan and also submitted an amended Appendix A which contained the proper percentage requirements. The Chicago office of the EPA submitted these materials to its Washington office which consulted with the Department of Labor which has primary responsibility for interpretation of the imposed Chicago Plan. On July 10, 1974 Rossetti was informed by the EPA that the Department of Labor had refused to accept the amended Appendix A and that the contract would be awarded to the next low bidder, intervenor defendant Loitz Construction Company. Loitz's bid was approximately $55,000 more than Rossetti's.

8. The Hinsdale Sanitary District project had originally been bid as a single project rather than in separate phases. Thus, on April 22, 1974 Rossetti was part of a joint venture which bid the overall project. Its joint venture partners were Advance Construction Company and Pontarelli Construction Company. Advance Construction had the responsibility for preparation of the bid documents including Appendix A. At that time, Advance inadvertently used 10% rather than 10.2% as the goal for utilization of minority operating engineers for the year 1974. A similar mistake was made for 1975. No officer of Rossetti actually saw the Appendix A submitted by the joint venture of which it was a part and its officers assumed that Appendix A was submitted in the percentages of employment of minorities in accordance with the requirement of the imposed Chicago Plan. The joint venture bid, while low, was over budget and while the bid was considered by the Hinsdale Sanitary District for two to three weeks it was eventually rejected as being over budget. The Village of Hinsdale did not mention to Rossetti that Appendix A was not properly filled out. No Federal agency or other person or entity called the attention of Anthony Rossetti, president of Rossetti Contracting Company, to the error, which was indeed very slight. Mr. Rossetti assumed that an Appendix A had been supplied, in conformity with the goal required under the imposed Chicago Plan, by the joint venture. His action in making such assumption was that of a reasonable and prudent man. Under the circumstances this assumption and his action constituted excusable error, since it did not in any way affect price, quality or quantity of the goods or the service to be performed.

9. When the project was rebid in separate phases a Rossetti employee called Advance to determine how Advance had filled out Appendix A in the joint venture situation. The president of Rossetti inadvertently assumed, as hereinabove set forth, that the Appendix A submitted to Hinsdale in the joint venture bid was filled out in conformity with the requirement of the imposed Chicago Plan and acting upon such assumption told his office manager to use the same data to fill out the Appendix A for the Rossetti bid for the Hinsdale Sanitary District project. At the time Rossetti and its officers acted in good faith and believed that Rossetti was in compliance with the requirement of the Chicago Plan for minority hiring, even though it was in error. Consequently, the incorrect percentages were filled out in Appendix A in Rossetti's Hinsdale bid. The incorrect percentage was only a slight error of .2 of 1 percent below the required percentage for the year 1974, which error Rossetti immediately sought to correct when it learned of the error. It was purely a minor error that could be and was corrected without damage to any of the parties and in such manner that the object and purpose of the law will be accomplished if the Rossetti Company is awarded the contract.

10. On March 26, 1974 Advance bid a project in Joliet, Illinois also partially funded by the EPA. Appendix A was not included in the original bid documents and on May 10, 1974 Advance, pursuant to a request from the owner, submitted an Appendix A which again carried over the joint venture error and set forth a figure of 10% for the years 1974 and 1975. The error in this Appendix A was noticed by the regional office of the EPA and Mr. Ronald Cornelius of the EPA after consultation with Mr. James Wardlaw of the Department of Labor allowed Advance to submit an amended Appendix A, correcting the percentage errors. The reasons for this decision were that Advance had a good record in the equal employment area, that the error was only .2 of 1% and that Advance's bid was $500,000 lower than the next bid. It was also noted by...

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