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L.e. Zannini & Co. v. Board of Education

OPINION FILED DECEMBER 10, 1985.

L.E. ZANNINI & CO., INC., PLAINTIFF-APPELLANT,

v.

BOARD OF EDUCATION, HAWTHORN SCHOOL DISTRICT 73, DEFENDANT-APPELLEE (JENKINS & BOLLER CO., INC., INTERVENOR-APPELLEE).



Appeal from the Circuit Court of Lake County; the Hon. Alphonse F. Witt, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Plaintiff, L.E. Zannini & Co., Inc. (Zannini), a general contractor, was the low bidder on a $2.7 million contract for the construction of a new public school. Defendant, board of education, Hawthorn School District 73 (board), awarded the contract to the second lowest bidder, Jenkins & Boller Co., Inc. As a result, Zannini filed suit charging the board with violating section 10-20.21 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 10-20.21), which requires contracts to be awarded to the "lowest responsible bidder." Jenkins & Boller was permitted to intervene in the suit. After various hearings, the trial court, based on this court's decision in Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App.3d 880, dismissed Zannini's complaint. Zannini appealed and the board cross-appealed a portion of one of the trial court's orders which found that Zannini's complaint was factually sufficient to state a cause of action.

In June of 1985, the board, through its architect, Joseph Legat Architects, P.C. (Legat), solicited bids for the construction of a new school. Included among the instructions to bidders were the following provisions:

"A. If the Owner should award a Contract, the Owner will award it to the lowest bonafide Bidder with full consideration given to Contractor's Completion Schedule.

B. In awarding contract, the Owner may take into consideration skill, facilities, capacity, experience, ability, responsibility, previous work, financial standing of bider [sic], amount of work being carried on by bidder, quality and efficiency of construction equipment proposed to be furnished, period of time within which proposed equipment is furnished and delivered, and necessity of prompt and efficient completion of work herein described."

The proposed contract for the project contained a liquidated damages clause which provided that if the work was not completed on the specified completion date, the board would withhold from the contractor's final payment "$400 per calendar day from the required date of final completion to the actual date of final completion."

Legat provided each bidder with the necessary documents, including a bid form which was to be completed, sealed, and filed with the board. In section A of the bid form, the contractor was to state its base bid for all the work on the project. In section B, entitled alternate bids, the contractor was to "[s]tate the amounts of Alternate Prices to be added to or deducted from the Base Bid on the Bid Form." The instructions to alternate No. 1 provided: "State the amount to be deducted from the lump sum base bid if the Liquidated Damages Clause is deleted from the Contract." Section F established July 1, 1986, as the date when all work on the school was to be completed. Section G provided:

"The space to the right of the desired completion schedule has been left for insertion of Contractor's own completion schedule dates, if he feels that the desired dates as stated in the specifications cannot be met.

DESIRED COMPLETION CONTRACTOR'S COMPLETION July 1, 1986 _____________________."

Seven contractors bid on the school project. The bids were opened at a school board meeting on July 22, 1985. Zannini was the low bidder with a base bid of $2,716,000, some $8,000 less than the second lowest bidder, Jenkins & Boller. However, Zannini had inserted a figure of $24,000 in alternate No. 1, while Jenkins & Boller had inserted the words "No Bid." In addition Zannini did not insert a completion date in section G, while Jenkins & Boller had inserted the date July 1, 1986. Ben White, administrative assistant to the superintendent of Hawthorn School District 73, stated in an affidavit (which was attached to the board's motion to dismiss) that Wayne Machnich, Legat's representative, met with the board and reported that while Zannini was the low bidder, it had provided for 60 days of liquidated damages in its bid by stating in alternate No. 1 that it would reduce its base bid by $24,000 if the board agreed to remove the liquidated damages clause from the contract (60 days times $400 per day liquidated damages equals $24,000). In addition, unlike the other bidders, Zannini did not complete the space provided for the insertion of the contractor's completion date in section G. According to White, the board, after discussing the bids with Machnich, "determined that the Zannini bid was structured so as to allow the bidder to finish 60 days late without penalty. This was considered a non-responsive act, and contrary to the prompt and efficient completion of the work." Consequently, the board rejected Zannini's bid and instead awarded the contract to Jenkins & Boller.

Zannini countered by filing a one-count complaint in the circuit court of Lake County, charging the board with violating section 10-20.21 of the School Code (Ill. Rev. Stat. 1983, ch. 122, par. 10-20.21). The complaint sought declaratory and injunctive relief, a common law writ of certiorari and a writ of mandamus directing the board to award the contract to Zannini. In essence, Zannini claimed it was denied the contract solely because it complied with the board's own bidding instructions. Zannini alleged that it learned from the board and Legat that the board rejected its bid because it had bid $24,000 in alternate No. 1 and because it had failed to insert a completion date in section G. Neither reason, Zannini charged, was sufficient justification for awarding the contract to Jenkins & Boller. Zannini alleged that it bid on alternate No. 1 because the bidding instructions required it to do so. It further alleged that it could complete the construction by the specified completion date, and therefore did not insert a completion date in section G because the instructions only called upon the contractor to insert a date if he felt he could not complete the project on time. Zannini also charged the Board, based upon "information and belief," with favoritism in awarding the contract to Jenkins & Boller.

The Board moved to dismiss the complaint on the ground that Zannini was not a taxpayer of the school district and therefore lacked standing to maintain a cause of action under this court's decision in Beaver Glass & Mirror Co. v. Board of Education (1978), 59 Ill. App.3d 880. Alternatively, the board, asserting that the complaint contained only conclusional allegations, moved to strike the complaint for failure to state a cause of action. The trial court granted the motion to dismiss insofar as Zannini's claim was based on the School Code but denied the motion with respect to the causes of action for common law certiorari and mandamus. The court also denied the board's motion to strike, finding that the allegations were sufficient to state a cause of action. Later the board filed a motion for summary judgment, which in reality was a motion to reconsider the earlier ruling. The board argued that as a matter of law, Zannini was unable to state any cause of action. The trial court agreed, and reversed its earlier ruling and granted the board's motion to dismiss Zannini's action based on common law certiorari and mandamus.

Zannini filed an emergency motion in this court for (1) a stay pending appeal to preserve the status quo; (2) an expedited decision on appeal; and (3) injunctive relief. This court denied the motion but did provide for an expedited briefing schedule. Zannini filed an emergency motion for a supervisory order in the supreme court requesting the court to order this court to expedite hearing of this appeal without further briefing and to enjoin the board and Jenkins & Boller from altering the status quo and proceeding with construction beyond the site clearing stage until this appeal was decided. The supreme court denied the motion.

The board filed a motion in this court to strike four discovery depositions, one evidence deposition and two affidavits from the record on appeal. In addition, the board moved to strike certain pages of Zannini's brief wherein Zannini refers to the depositions and affidavits. This court ordered the motion taken with the case.

The record shows that the trial court, after its ruling dismissing Zannini's complaint, permitted Zannini to file the depositions over the objections of the board and Jenkins & Boller. Although Zannini included excerpts from the depositions in a memorandum filed in the trial court, it is clear from the record the trial court did not consider the depositions in ruling on the board's motion to dismiss. Indeed, the only reason that the trial court permitted the depositions to be filed was that it felt they should be made ...


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