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Brunsfeld & Sons v. Bd. of Educ. of Chicago

OPINION FILED OCTOBER 25, 1977.

JOHN N. BRUNSFELD & SONS, INC., PLAINTIFF-APPELLEE,

v.

THE BOARD OF EDUCATION OF THE CITY OF CHICAGO ET AL., DEFENDANTS. — (THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding.

MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:

This appeal presents the issue of whether a bidder for work to be performed for the Board of Education of the City of Chicago, a body politic and corporate, has met the requirements of compliance with applicable Federal and State Equal Employment Opportunity laws, and Fair Employment Practice laws, and specifically has submitted an acceptable written affirmative action program (Pre-Award Survey) to assure compliance with the Board of Education's equal employment opportunity guidelines.

Plaintiff, John N. Brunsfeld & Sons, Inc., an Illinois corporation, filed a two count amended complaint seeking injunctive relief. Count I was against the defendant Board of Education of the City of Chicago (hereinafter "Board"), and alleged that plaintiff was the low bidder on contracts for roofing repairs at four schools (Blaine, Magellan, Moseley, and Thomas Schools), and that on being advised that it was the low bidder, it took the necessary steps to prepare for the beginning of work as stated in the Board's proposals for bids. Subsequently, plaintiff was notified by the Board's director of equal employment opportunity that its bids were not being accepted because it had not complied with the Board's affirmative action program.

Count I prayed for a temporary restraining order prohibiting the Board from ratifying and affirming any contract for the roofing work, a preliminary injunction enjoining the Board from ratifying and affirming any contract for the roofing work with any party other than plaintiff, a permanent injunction ordering the Board to ratify and affirm plaintiff's proposals as low bidder, and an order directing the Board to vacate any ratification or affirmation of any contract pursuant to any proposals submitted by any party other than plaintiff.

Count II was against the defendant Norton Sons Roofing Company (hereinafter Norton), and alleged that Norton was the second lowest bidder as to the Moseley School, and that Norton was awarded the contract for roofing repairs at that school. Count II prayed for a temporary restraining order and a permanent injunction prohibiting Norton from performing any construction work upon the Moseley School, and for an order directing the Board to revoke its ratification and affirmation of Norton's proposal, and award the Moseley School contract to plaintiff.

After a trial on the merits, the trial court entered an order which permanently enjoined the Board from awarding any contract for roofing repairs to Norton under the August 15, 1975, proposals for bids on the Blaine, Magellan, and Thomas schools and permanently enjoined Norton from performing any construction work upon the Moseley School under the contract awarded by the Board, pursuant to the request for bids for roofing repairs of August 15, 1975.

The defendant Board appeals from the portion of the order pertaining to it, contending that the extraordinary relief of injunction was improperly granted where the plaintiff failed to submit an acceptable "Affirmative Action Pre-Award Survey." Defendant Norton has not appealed.

• 1 We do not have the benefit of a brief on behalf of plaintiff. Our supreme court has stated, "However, the judgment of a trial court should not be reversed pro forma for the appellee's failure to file its brief as required by rule. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal." (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 131, 345 N.E.2d 493.) We thus address ourselves to the merits of the appeal.

On November 10, 1971, the Board, pursuant to its statutory rule-making power (Ill. Rev. Stat. 1973, ch. 122, par. 34-19), adopted as its policy the requirement that each Board contractor must comply with all applicable laws requiring equal employment opportunity and fair employment practices. On August 23, 1972, the Board again exercised this power and established the requirement that contractors must submit an acceptable written affirmative action program (hereinafter "acceptable program") with their bid proposal and adopted the policy that the successful bidder would be awarded the contract only if he had an acceptable program. Equal employment opportunity guidelines (hereinafter "Guidelines") were adopted by the Board on April 25, 1973, to be used as objective standards in the determination of whether an affirmative action program (hereinafter "program") was "acceptable."

In August, 1975, the Board advertised for bids for roofing work to be performed at the four aforementioned schools, as per the statutory provisions requiring it to utilize the competitive bidding process in awarding the contracts in question and to award each contract to the "lowest responsible bidder" of those participating in the competitive bidding for each contract. (Ill. Rev. Stat. 1973, ch. 122, pars. 34-21.3, 10-20.21.) With the proposal form and bid specifications sent to prospective bidders, there was included an "Affirmative Action Pre-Award Survey" (hereinafter "Survey"), which provided in pertinent part:

"As a condition precedent to consideration and/or acceptance of any bid by the Board of Education, each bidder must submit with his bid a written affirmative action program demonstrating his compliance with Board of Education policy and Federal, State and Local laws requiring equal employment opportunity in all aspects of employment irrespective of race, color, religion, sex or national origin."

The Survey also provided in language almost identical to that contained in the Board's Guidelines:

"An acceptable affirmative action program must include an analysis of areas within which the contractor is deficient in the utilization of minority groups and women; and further, where deficiencies exist, goals and timetables to which the contractor's good faith efforts must be directed and, thus to increase materially the utilization of minorities and women at all levels and in all segments of his work force."

The Survey submitted to each contractor fully included an "Employment Practices Report" form, an "Affirmative Action Plan" form, a "Certification As To Equal Employment Opportunity," ...


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