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Young v. Village of Glen Ellyn

OPINION FILED DECEMBER 30, 1983.

E. LAWRENCE YOUNG, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF GLEN ELLYN ET AL., DEFENDANTS-APPELLANTS. — BROWNING FERRIS INDUSTRIES, INC., PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF GLEN ELLYN ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Du Page County; the Hon. Robert D. McLaren, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendants, the village of Glen Ellyn and Laidlaw Waste Systems, Inc., appeal from a summary judgment entered in favor of plaintiffs, E. Lawrence Young, Jr., et al. and Browning Ferris Industries of Illinois, Inc., declaring that a contract for garbage removal entered into between the village and Laidlaw was void and enjoining its performance.

The primary question presented by this appeal is whether garbage collection is a utility service excluded from competitive bidding requirements within the context of an ordinance of the village.

In September 1980, the board of trustees of the village decided to solicit bids from interested parties for the award of an exclusive contract for collection of residential refuse within the village. It caused bid packages to be sent to 18 or 20 scavenger companies for which bids were requested on several alternate options, including both a limited and full service basis. Bidders were also requested to submit rates for alternate terms extending over both a 2 1/2-year period and also for a five year period. The village expressly reserved the right to determine which level of service and time period would be accepted and a contract awarded to the successful bidder.

In October 1980, the village held a prebid conference with interested bidders who were advised it reserved the right to reject any or all bids and that, depending upon the bid options which it accepted, the contract entered with the successful bidder would be modified to meet the type of service selected by the village.

The village eventually received four bids relating to the unlimited garbage collection service option sought by it, and which it ultimately selected, as follows:

Curb Rear Door

Stern $7.56 $10.56 Theta (now Laidlaw) 6.82 10.41 Browning Ferris 8.50 15.32 Molenhouse 10.00 11.10

A public information meeting was held December 15 at which the garbage collection options were discussed and the Village Board of Trustees met on January 12, 1981, and adopted a resolution awarding the garbage collection contract to Laidlaw (the low bidder) under the fullservice option. The resolution also set forth a formula for adjustment of the rate after the initial 2 1/2-year contract period and the terms of the performance bond were fixed.

Prior to adoption of the resolution accepting Laidlaw's bid the trustees debated, with much disagreement, whether the contract should be awarded to Browning Ferris (third lowest bidder) because it had been serving a majority of the village residents through individual contracts with them under the previous licensing system then in operation. A tie vote of the six village trustees was resolved by the vote of the village president to award the contract to Laidlaw. The final contract was entered between the village and Laidlaw on January 26, 1981, in which several modifications of terms were agreed upon between them which were considered by the trustees to be necessary under the unlimited service collection option chosen.

Declaratory judgment actions were commenced by plaintiffs, Young et al., as taxpayers of the village, and by Browning Ferris, as an unsuccessful bidder for the contract. The cases were consolidated by the trial court and it granted a motion for summary judgment in which all plaintiffs joined. The trial court found, inter alia, that section 1-10-1 of chapter 10 of the Village Code of Glen Ellyn required that the garbage collection contract be let only by competitive bidding and, while the village did seek such bids, material alterations in the terms of the contract which was thereafter entered from those upon which bids were sought invalidated the contract.

Neither defendant argues on appeal that plaintiffs Young et al., as taxpayers of the village, lack standing to seek the declaratory and injunctive relief sought in this action; however, Laidlaw challenges the right of Browning Ferris to do so as an unsuccessful bidder on the contract and we will consider that issue first.

• 1, 2 In order to have standing in an action for declaratory relief a party must be interested in the controversy to the extent that the party has a personal claim, status or right which is capable of being affected and the dispute must touch the legal relations of parties who are adverse to one another. (Allen v. Love (1983), 112 Ill. App.3d 338, 340-41, 445 N.E.2d 514.) It has been held under these standards that an unsuccessful bidder for a public contract has standing to bring an action against a municipality and the successful bidder challenging the award. (Stanley Magic-Door, Inc. v. City of Chicago (1979), 74 Ill. App.3d 595, 597, 393 N.E.2d 535; see Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App.3d 972, 387 N.E.2d 785; Mohr v. City of Chicago (1904), 114 Ill. App. 283.) We conclude Browning Ferris was authorized to bring its action.

We consider next defendant's contention that summary judgment was erroneously granted to plaintiffs as the village was not required by its ordinance to let the garbage collection contract under the competitive bidding provisions of the ordinance, as was determined by the trial court. The village argues that although it solicited bids for this ...


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