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Inskip v. Trustees

OPINION FILED NOVEMBER 30, 1962.

F.R. INSKIP ET AL., APPELLANTS,

v.

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, APPELLEE.



APPEAL from the Circuit Court of Champaign County; the Hon. CHARLES E. KELLER, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 28, 1963.

This cause comes on direct appeal to this court from a judgment of the circuit court of Champaign County interpreting the Illinois Purchasing Act (Ill. Rev. Stat. 1959, chap. 127, pars. 132.1 et seq.) approved July 11, 1957, (Laws of 1957, p. 2890), entitled "An Act in relation to state purchasing and contracts." Plaintiffs who are residents and taxpayers of Champaign County, conducting plumbing and heating businesses in Champaign County, belong to and constitute an unincorporated association known as the Plumbing and Heating Contractors of Champaign County. They filed a petition for declaratory judgment against The Board of Trustees of the University of Illinois alleging that the defendant board in the past and since the passage of the Illinois Purchasing Act makes purchases and expends funds for labor and repair, maintenance, remodeling, renovation and construction exceeding $1,500 on and about its property without awarding the same to the lowest responsible bidder on competitive bids, all in violation of the Illinois Purchasing Act. The petition refers specifically to the purchase of air conditioners to provide a refrigerated air conditioning system for the chemistry building on the University of Illinois campus at Urbana and the installation of said air conditioners by using defendant's employees, without first requesting and advertising for bids and without letting the same to the lowest responsible bidder, allegedly in violation of the Illinois Purchasing Act. Defendant filed an answer admitting that "this defendant, when it considered it to be advantageous and economical to do so, has expended state funds appropriated to it by the General Assembly for labor, for repairs, maintenance, remodeling, renovation and construction work exceeding $1,500 in cost performed by this defendant's own employees on and about its property instead of awarding such work to the lowest responsible bidder upon the basis of competitive bids taken by it therefor; but it denies that this was done in violation of any of the provisions of said Illinois Purchasing Act."

The pleadings are lengthy and the record voluminous but there is no serious dispute as to the facts, the plaintiffs essentially contending that the defendant board of trustees, admittedly an agency of the State of Illinois, is forbidden by the provisions of the Illinois Purchasing Act to break down a job or project into parts or sections, each of which involves not to exceed $1,500, and proceed to complete the same with its own labor, and the defendant contending that this practice is not prohibited by the terms of the act. Plaintiffs contend that the cost of the labor of permanent employees must be added to the proposed job or project in determining the cost and that defendant has no option or discretion not to have the same performed by contract let upon prescribed bidding practices where the total cost including labor, materials, supplies, commodities and equipment exceeds $1,500. Defendant by its answer admitted that it plans and intends to continue to do repair, maintenance, remodeling, renovation and construction work in and about its buildings involving expenditure of State funds in excess of $1,500 with its own employees without advertising for bids for such work and without letting such work to a contractor submitting the lowest responsible bid "when this defendant finds that it is more advantageous and economical to perform such work with its own employees than it would be to let such work to a contractor upon the basis of competitive bidding therefor", and defendant denies that this will violate either the spirit or the letter of the act or any provision thereof.

The petition for declaratory judgment was filed pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1959, chap. 110, par. 57.1), and the direct appeal to this court is predicated upon the provisions of section 75 of the Civil Practice Act which provides that appeals shall be taken directly to this Court "in all cases * * * in which the State is interested as a party or otherwise." (Ill. Rev. Stat. 1959, chap. 110, par. 75.) The sole defendant is the University of Illinois sued by its correct name "The Board of Trustees of the University of Illinois" which we have heretofore held is a corporation, separate and distinct from the State and no part of the State or State government, (People ex rel. Board of Trustees of the University of Illinois v. Barrett, 382 Ill. 321, 342,) but which is included within the definition of a "State agency" in the legislation here pertinent, since it expends or encumbers State funds "by virtue of an annual or biennial appropriation from the General Assembly." (Ill. Rev. Stat. 1959, chap. 127, par. 132.3). We hold that we have jurisdiction to entertain this appeal since the State has a direct and substantial interest of a monetary character. Ill. Rev. Stat. 1961, chap. 110, par. 75(1)(b); Illinois Public Aid Com. v. Massie, 13 Ill.2d 498; Smith v. Hodge, 13 Ill.2d 197; People ex rel. Moffett v. Turnbull, 256 Ill. 532; Retail Liquor Dealers Protective Ass'n v. Fleck, 406 Ill. 24; People v. Schallerer, 12 Ill.2d 240.

The title of the Illinois Purchasing Act is "An Act in relation to state purchasing and contracts" approved July 11, 1957. Section 2 of the act provides:

"It is the purpose of this Act and is hereby declared to be the policy of the state that the principle of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts for which state funds are expended."

Section 5 provides in part that:

"All purchases, contracts or other obligation or expenditure of funds by any State agency shall be in accordance with rules and regulations governing such State agency procurement practices and procedures which it shall promulgate and publish in sufficient number for distribution to persons interested in bidding on purchases or contracts to be let by such State agency."

The relevant provisions of section 6, as they existed in 1959, are as follows:

"The rules and regulations required by Section 5 of this Act shall provide, among other matters which are not in conflict with the policies and principles herein set forth:

"a. That all purchases, contracts and expenditure of funds shall be awarded to the lowest responsible bidder considering conformity with specifications, terms of delivery, quality and serviceability; except that bidding shall not be required in the following cases:

(1) Where the goods or services to be procured are economically procurable from only one source, such as contracts for telephone service, electrical energy, and other public utility services, books, pamphlets and ...


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