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Geo. W. Kennedy Constr. Co. v. Chicago

OPINION FILED APRIL 4, 1986.

GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., APPELLANT,

v.

THE CITY OF CHICAGO ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Albert Green, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, George W. Kennedy Construction Company, Inc., an Illinois corporation (plaintiff), filed a four-count complaint in the circuit court of Cook County against the following defendants: the city of Chicago, a municipal corporation (city); William Spicer, purchasing agent for the city of Chicago (Spicer); Reliable Contracting and Equipment Company, an Illinois corporation (Reliable); and Abbott Contractors, Inc., an Illinois corporation (Abbott).

Count I sought a declaratory judgment finding that plaintiff was the lowest responsible bidder on a construction project known as the 48-inch Mayfair-O'Hare Reinforcement Water Main (48-inch project); a further finding that the bid jointly submitted by Reliable and Abbott was improper and void; and an order directing the city and Spicer to accept plaintiff's bid. Count II sought a temporary restraining order as well as preliminary and permanent injunctive relief against the city and Spicer prohibiting them from awarding the contract on the 48-inch project to any bidder other than plaintiff and, further, prohibiting the city and Spicer from allowing any bidder other than plaintiff to proceed with work on the project. Count II also sought a permanent mandatory injunction ordering the city and Spicer to award the contract on the 48-inch project to plaintiff and to permit it to begin work. Count III of the complaint sought a writ of mandamus against the city and Spicer directing them to award the disputed contract to plaintiff and to permit work to commence. Count IV sought a writ of certiorari under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, pars. 3-101 through 3-112) to review the award of the 48-inch contract to Reliable and Abbott and for an order reversing that award.

The circuit court entered a temporary restraining order and scheduled a hearing on plaintiff's motion for preliminary and permanent injunctive relief. Prior to this hearing, plaintiff filed a motion for summary judgment. All defendants filed cross-motions for summary judgment.

After a full hearing, the court entered an order dissolving the temporary restraining order, denying plaintiff preliminary and permanent injunctive relief, denying plaintiff's motion for summary judgment, and granting defendants' cross-motions for summary judgment. The court found that plaintiff's bid was unresponsive because the necessary authorizing signature of its president, George W. Kennedy, did not appear on the corporate bid-execution page of plaintiff's bid proposal at the time it was submitted but was affixed five days after the bid was opened. The court denied plaintiff's motion to stay its order pending appeal.

Plaintiff filed an immediate notice of appeal, along with motions for an expedited appeal and a stay of the circuit court's order pending appeal. The appellate court granted the motion for an expedited appeal but denied the motion for a stay. Subsequently, a majority of the appellate court affirmed, finding that plaintiff's failure to execute its bid when submitted constituted a material variance which could not be cured and which rendered the bid unresponsive. (135 Ill. App.3d 306, 314.) We allowed plaintiff's petition to appeal.

Defendant Spicer, on behalf of the defendant city, advertised for bids on two water-main projects, one of which was the 48-inch project here in dispute. The other project, known as the 60-inch Mayfair-O'Hare Reinforcement Water Main, was awarded to plaintiff, who was found to have submitted the lowest, properly executed bid. Bids for both projects were to be submitted by January 11, 1985, and were opened on that date. Among various requirements, the advertisement indicated that all bids were to be executed in triplicate. When the bids were opened, plaintiff was the apparent low bidder on the 48-inch project with a bid approximately $182,000 lower than the next lowest bid. However, at the time the bid was opened, it was noted that the necessary authorizing signature on the corporate bid-execution page was missing.

The bid-execution page contains a declaration by the bidder that the information provided is current, that all ownership interests are disclosed, and that no collusive agreements have been entered into. The noncollusive declaration provides:

"[T]he undersigned being duly sworn deposes and says on oath that the [c]orporation * * * has not entered into any agreement with any other bidder or prospective bidder or with any other person, firm or corporation relating to the price named in said proposal or any other proposal, nor any agreement or arrangement under which any person, firm or corporation is to refrain from bidding, nor any agreement or arrangement for any act or omission in restraint of free competition among bidders and has not disclosed to any person, firm or corporation the terms of said bid or the price named herein."

This declaration is included in all bid proposals pursuant to statute which provides in pertinent part:

"Any agreement or collusion among bidders or prospective bidders in restraint of freedom of competition by agreement to bid a fixed price, or otherwise, shall render the bids of such bidders void. Each bidder shall accompany his bid with a sworn statement, or otherwise swear or affirm, that he has not been a party to any such agreement. * * *" (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 24, par. 8-10-8.)

The bid-execution page submitted by a corporate bidder further provides:

"In the event that this bid is executed by other than the President, attach hereto a certified copy of that section of the Corporate By-Laws or other authorization by the Corporation which permits the person to ...


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