Williams Bros. Const. v. Public Bldg. Com'n of Kane County, 2-92-0973

• Decision Date: 15 April 1993
• Docket Number: No. 2-92-0973,2-92-0973
• Citation: 184 Ill.Dec. 14,612 N.E.2d 890,243 Ill.App.3d 949
• Parties: , 184 Ill.Dec. 14 WILLIAMS BROTHERS CONSTRUCTION, INC., Plaintiff-Appellant, v. The PUBLIC BUILDING COMMISSION OF KANE COUNTY et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

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612 N.E.2d 890 243 Ill.App.3d 949, 184 Ill.Dec. 14 WILLIAMS BROTHERS CONSTRUCTION, INC., Plaintiff-Appellant,
v.
The PUBLIC BUILDING COMMISSION OF KANE COUNTY et al.,
Defendants-Appellees. No. 2-92-0973. Appellate Court of Illinois,
Second District. April 15, 1993.

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[243 Ill.App.3d 951] [184 Ill.Dec. 15] Howard W. Feldman, Feldman & Wasser, J. Randall Cox, Feldman & Wasser, Springfield, James Skaar, Smith, Landmeier & Skaar, P.C., Geneva, for Williams Brothers Const., Inc.

James T. Ryan, Ryan, Nelson & McSherry, Arlington Heights, for Ockerland Const. Co.

Stephen Sullivan, Batavia, for Kane County Public Bldg. Com'n, Board of Trustees of Waubonsee Community College.

Presiding Justice INGLIS delivered the opinion of the court:

This case involves a construction project sponsored by the Public Building Commission of Kane County (Commission) for the benefit of the Board of Trustees of Waubonsee Community College (Board). Acting on the Board's recommendation, the Commission awarded the contract for the project to the low bidder, Ockerlund Construction Company (Ockerlund), pursuant to section 20 of the Public Building Commission Act (Building Commission Act) (Ill.Rev.Stat.1991, ch. 85, par. 1050). Plaintiff, Williams Brothers, Inc., the next-lowest bidder, sued to enjoin the award, arguing that Ockerlund's bid was nonresponsive because Ockerlund failed to list its proposed subcontractors on the bid form. Plaintiff petitioned for a preliminary injunction. After a hearing, the trial court refused to grant a preliminary injunction against the award to Ockerlund.

On interlocutory appeal (134 Ill.2d R. 307(a)), plaintiff argues that the trial court abused its discretion in refusing the preliminary injunction. Plaintiff argues that it made a sufficient case that Ockerlund's failure to list its subcontractors was a material and nonwaivable variance from the bid specifications. Therefore, plaintiff concludes,

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[184 Ill.Dec. 16] it met the requirements for maintaining the status quo by a preliminary injunction.

We hold that, under the facts of this case, the trial court did not err in denying the preliminary injunction. On the limited record we face, we cannot say that the trial court erred in upholding the Board's conclusion that Ockerlund's failure to list its subcontractors with the bid was at worst a nonmaterial variance which did not make Ockerlund's bid nonresponsive.

Plaintiff's complaint, filed July 30, 1992, alleged the following: The Commission is a municipal corporation organized under the Building Commission Act (Ill.Rev.Stat.1991, ch. 85, par. 1031 et [243 Ill.App.3d 952] seq.). The Commission advertised for bids on the project. As part of the public bidding process, the Commission issued bidding documents which, according to plaintiff, required each contractor to list the names of the subcontractors it would use if it received the bid. Ockerlund submitted a bid form which left blank the section entitled "List of Subcontractors." Plaintiff's bid listed its anticipated subcontractors. On or about July 16, 1992, the Commission indicated that it would award the contract to Ockerlund.

The complaint alleged that the award of the contract to Ockerlund was contrary to law because Ockerlund's failure to list its subcontractors gave it an unfair advantage over other bidders, thus making Ockerlund's bid nonresponsive and requiring the Commission to reject the bid. Plaintiff alleged that it had met all the requirements for injunctive relief. Also, plaintiff sought a declaration of the parties' rights. Plaintiff attached copies of its completed bid form, Ockerlund's completed bid form, and a letter of July 17, 1992, from the Commission's attorney to plaintiff's counsel.

On the bid form, the Board "reserve[d] the right to reject any or all bids, to waive any irregularities in the bidding or to accept the bid that in their judgment will be for their best interest." (Emphasis added.) The letter of July 17, 1992, stated that the Commission believed that Ockerlund's failure to list subcontractors in its bid was a formal defect that the Commission could waive, as the omission appeared not to give Ockerlund an unfair advantage over other bidders. The letter noted that, before Ockerlund's bid was accepted, Ockerlund had "provided a list of subcontractors in accordance with the bid specs."

On July 30, 1992, plaintiff petitioned for a preliminary injunction. Plaintiff asked the court to enjoin the Commission from entering into a contract with Ockerlund; to enjoin Ockerlund from working on the project; and to enjoin the Commission from awarding the job to anyone other than plaintiff.

We now summarize the evidence presented at the hearing on plaintiff's petition. Plaintiff called John Murphy, the treasurer and vice-president of Waubonsee Community College. Murphy accepted the Ockerlund bid on behalf of the college, which "recommended the bid to the Commission." As of the hearing, no contract had been entered into with Ockerlund, although the company had a trailer on the site. Murphy admitted that work could not begin until there was a contract. However, the Board had issued Ockerlund a purchase order with regard to the project, which was admitted into evidence. This order, dated July 17, 1992, was issued on the Commission's authority.

[243 Ill.App.3d 953] Murphy acknowledged that it was a requirement of the bid document that a bidder complete the portion of the bid document calling for the listing of subcontractors. He also conceded that Ockerlund did not meet that requirement in submitting its bid, a fact of which Murphy became aware on the day the bidding opened. Murphy could not say why Ockerlund's bid did not list any subcontractors. Within about a week of submitting its bid, Ockerlund submitted a list of its proposed subcontractors.

The Board desired that the project be completed by August 1993 for the convenience of students and college personnel. Murphy explained that the Board accepted Ockerlund's bid, despite the failure to list contractors, because the Board was interested only in the identity of the contractor and not those of any subcontractors. The Board included the provision for listing

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[184 Ill.Dec. 17] subcontractors because the architect recommended this "boilerplate." The Board accepted Ockerlund's bid as the result of discussions with the architect and counsel for the Commission.

Murphy knew no reason to require bidders to list their subcontractors. He knew of no advantage that Ockerlund received from the Commission's waiver of this requirement.

Thomas J...