{ "id": 3403613, "name": "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.)", "name_abbreviation": "John N. Brunsfeld & Sons, Inc. v. Board of Education", "decision_date": "1977-10-25", "docket_number": "No. 76-334", "first_page": "119", "last_page": "127", "citations": [ { "type": "official", "cite": "54 Ill. App. 3d 119" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "254 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4688780 ], "opinion_index": 0, "case_paths": [ "/ill/254/0343-01" ] }, { "cite": "124 N.E. 860", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "290 Ill. 59", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2419476 ], "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill/290/0059-01" ] }, { "cite": "364 N.E.2d 542", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5636972 ], "weight": 2, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0649-01" ] }, { "cite": "92 S. Ct. 98", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "30 L. Ed. 2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "404 U.S. 854", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6306721, 6307234, 6306948, 6305480, 6307469, 6306226, 6305972, 6306517, 6305085, 6305727 ], "opinion_index": 0, "case_paths": [ "/us/404/0854-07", "/us/404/0854-09", "/us/404/0854-08", "/us/404/0854-02", "/us/404/0854-10", "/us/404/0854-05", "/us/404/0854-04", "/us/404/0854-06", "/us/404/0854-01", "/us/404/0854-03" ] }, { "cite": "442 F.2d 159", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 769637 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/442/0159-01" ] }, { "cite": "327 F. Supp. 1154", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5860330 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "1159" }, { "page": "1161" } ], "opinion_index": 0, "case_paths": [ "/f-supp/327/1154-01" ] }, { "cite": "471 F.2d 680", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 268889 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "684" } ], "opinion_index": 0, "case_paths": [ "/f2d/471/0680-01" ] }, { "cite": "94 S. Ct. 1971", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "40 L. Ed. 2d 307", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "416 U.S. 957", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84609, 84707, 84102, 84715, 84556, 84268, 84685, 84411, 84189, 84381, 84254 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/416/0957-01", "/us/416/0957-11", "/us/416/0957-10", "/us/416/0957-03", "/us/416/0957-09", "/us/416/0957-05", "/us/416/0957-07", "/us/416/0957-04", "/us/416/0957-08", "/us/416/0957-06", "/us/416/0957-02" ] }, { "cite": "490 F.2d 9", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 228431 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/490/0009-01" ] }, { "cite": "508 F.2d 1039", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 135192 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/508/1039-01" ] }, { "cite": "90 S. Ct. 554", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1975, "opinion_index": 0 }, { "cite": "24 L. Ed. 2d 495", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1975, "opinion_index": 0 }, { "cite": "396 U.S. 1004", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11415968, 11415809, 11415882, 11415919, 11416017, 11415833 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/396/1004-05", "/us/396/1004-01", "/us/396/1004-03", "/us/396/1004-04", "/us/396/1004-06", "/us/396/1004-02" ] }, { "cite": "249 N.E.2d 907", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "19 Ohio St. 2d 35", "category": "reporters:state", "reporter": "Ohio St. 2d", "case_ids": [ 6690324 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ohio-st-2d/19/0035-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 823, "char_count": 19691, "ocr_confidence": 0.889, "pagerank": { "raw": 1.0572058180101469e-07, "percentile": 0.5556418540231496 }, "sha256": "ff2234f8d182ad422cb8dff57567610258c44578f39fec9087a69f770c76aaac", "simhash": "1:cbd162a0a5d485ec", "word_count": 3106 }, "last_updated": "2023-07-14T21:56:34.806209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN N. BRUNSFELD & SONS, INC., Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants.\u2014(THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE PUSATERI\ndelivered the opinion of the court:\nThis 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\u2019s equal employment opportunity guidelines.\nPlaintiff, 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 \u201cBoard\u201d), 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\u2019s proposals for bids. Subsequently, plaintiff was notified by the Board\u2019s director of equal employment opportunity that its bids were not being accepted because it had not complied with the Board\u2019s affirmative action program.\nCount 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\u2019s 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.\nCount 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\u2019s proposal, and award the Moseley School contract to plaintiff.\nAfter 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.\nThe 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 \u201cAffirmative Action Pre-Award Survey.\u201d Defendant Norton has not appealed.\nWe do not have the benefit of a brief on behalf of plaintiff. Our supreme court has stated, \u201cHowever, the judgment of a trial court should not be reversed pro forma for the appellee\u2019s 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.\u201d (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.\nOn November 10,1971, the Board, pursuant to its statutory rule-making power (Ill. Rev. Stat. 1973, ch. 122, par. 34 \u2014 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 \u201cacceptable program\u201d) 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 \u201cGuidelines\u201d) 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 \u201cprogram\u201d) was \u201cacceptable.\u201d\nIn 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 \u201clowest responsible bidder\u201d of those participating in the competitive bidding for each contract. (Ill. Rev. Stat. 1973, ch. 122, pars. 34 \u2014 21.3, 10 \u2014 20.21.) With the proposal form and bid specifications sent to prospective bidders, there was included an \u201cAffirmative Action Pre-\nAward Survey\u201d (hereinafter \u201cSurvey\u201d), which provided in pertinent part:\n\u201cAs 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.\u201d\nThe Survey also provided in language almost identical to that contained in the Board\u2019s Guidelines:\n\u201cAn 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\u2019s 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.\u201d\nThe Survey submitted to each contractor fully included an \u201cEmployment Practices Report\u201d form, an \u201cAffirmative Action Plan\u201d form, a \u201cCertification As To Equal Employment Opportunity,\u201d and a \u201cCertification of Nonsegregated Facilities.\u201d\nMr. Louis J. Barnes, Director of Equal Employment Opportunity for the Board, testified that it was his job to interpret the surveys submitted by bidders. In determining whether the lowest bidder has an underutilization of minority workers in his work force, he computes the percentage of minority workers in the contractor\u2019s total work force by referring to the \u201cEmployment Practices Report\u201d form, which provides data regarding the number of employees (as the most recent payroll period) employed in various job classifications, and the race and sex of each employee. He testified that for the year 1975, a contractor\u2019s total work force had to be comprised of at least 18 percent minority workers as per the Guidelines, or it would be deemed underutilized. If no underutilization was found, then the contractor\u2019s Survey would be his acceptable program, and the contractor would not have to set goals and timetables in the \u201cAffirmative Action Plan\u201d form included in the Survey. However, as work progressed, this contractor would be monitored to insure his continuing utilization of a minimum of 18 percent minority workers; he would be subject to on-site inspections and be required to file status reports.\nIf an underutilization was found, the number of minority workers the contractor intended to hire as indicated in the \u201cGoals and Timetables\u201d portion of the \u201cAffirmative Action Plan\u201d form, combined with the number of minority workers he presently employed, would have to meet or exceed the requisite 18 percent to constitute an acceptable program. The \u201cGoals and Timetables\u201d portion of this form requests the contractor to indicate: (1) the numbers of non-whites he would hire; (2) in what job categories; (3) by what target date. As work progressed, this contractor would be monitored to determine whether he was making a \u201cgood faith effort\u201d to comply with his goals and timetables.\nIn early September 1975, plaintiff submitted his Survey along with his sealed bids for the roofing work to be performed at the four aforementioned schools. Mr. Barnes reviewed the plaintiff\u2019s Survey and issued an opinion \u201cSurvey in non-compliance; do not award contract.\u201d He testified that the specific reasons for the decision of non-compliance and disapproval of the plaintiff\u2019s program as submitted was the underutilization of minority workers in plaintiff\u2019s work force, and plaintiff\u2019s failure to set goals and timetables designed to overcome the underutilization.\nMr. Barnes further testified that plaintiff had 11 employees, one of whom was a minority. He recognized that plaintiff, in the \u201cGoals and Timetables\u201d portion of the \u201cAffirmative Action Plan\u201d form, had indicated \u201c16-20% of Journeyman Labor Force, as requirements dictate.\u201d Mr. Barnes testified that this language did not indicate a certain target date or specific time which could be monitored, and * * we had asked for numbers, and the percentages are misleading, especially when there are no job categories indicated.\u201d\nBased primarily on the recommendation of Mr. Barnes, the Board of Education made a determination that the plaintiff\u2019s Survey was not in compliance and rejected the plaintiff\u2019s bid. The Board now contends that the trial court erroneously interfered by injunction with the Board\u2019s statutory discretion to so reject the plaintiff\u2019s bid. Ill. Rev. Stat. 1973, ch. 122, pars. 34 \u2014 21.3, 10 \u2014 20.21.\nIn making its determination in this case, the trial court reasoned that the important consideration was that if the plaintiff presented a program which would bring it in compliance, then it was eligible to have the contract awarded to it, and that it was sufficient for plaintiff to submit a program which said \u201cI will bring this up to sixteen to twenty percent or even more as dictated,\u201d and furthermore that the fact that plaintiff did not submit a date should not disqualify it, for * * it should be obvious to anybody that the date by which he would do it is when he would be undertaking the contract * * We do not concur with the trial court\u2019s conclusion in this regard.\nThat a public body such as a board of education may require successful bidders to comply with affirmative action equal opportunity guidelines as one of the terms and conditions of awarding public contracts is well established under Federal and State holdings. Weiner v. Cuyahoga Community College Dist. (1969), 19 Ohio St. 2d 35, 249 N.E.2d 907, cert. denied (1970), 396 U.S. 1004, 24 L. Ed. 2d 495, 90 S. Ct. 554; Rossetti Contracting Co., Inc. v. Brennan (7th Cir. 1975), 508 F.2d 1039; Associated Gen. Contractors of Mass., Inc. v. Altshuler (1st Cir. 1973), 490 F.2d 9, cert. denied (1974), 416 U.S. 957, 40 L. Ed. 2d 307, 94 S. Ct. 1971; Southern Illinois Builders Association v. Ogilvie (7th Cir. 1972), 471 F.2d 680, aff'd (S.D. Ill. 1971), 327 F. Supp. 1154; Contractors Association v. Secretary of Labor (3d Cir. 1971), 442 F.2d 159, cert. denied (1971), 404 U.S. 854, 30 L. Ed. 2d 95, 92 S. Ct. 98.\nOgilvie is one of the leading cases on the issue of the propriety of requiring affirmative action plans as a condition of the award of public construction contracts. There the District Court found that governmental bodies had a legitimate purpose in seeking to overcome the effects of past discrimination in the construction industry, and specifically the court stated:\n* * Discriminatory practices have taken place, and something must be done in order to rectify the situation. Such practices must be eliminated by responsible and responsive governmental agencies acting pursuant to the best interests of the community. * * *\u201d (327 F. Supp. 1154, 1159.)\nIn determining the propriety of including a requirement that contractors for public work commit themselves to an acceptable affirmative action program, the court stated:\n\u201cAs part of the terms and conditions of a contract, contractors who perform work on federal assisted projects must adopt affirmative action programs designed to guarantee equal employment opportunities for members of minority groups. If the Government has developed the Plan, as here, the contractor who is performing work pursuant to a contract where public money is involved, is bound by the terms and conditions of the affirmative action program.\u201d (327 F. Supp. 1154, 1161.)\nIn approving the \u201cOgilvie Plan,\u201d the Court of Appeals for the Seventh Circuit sustained regulations of the Secretary of Labor substantially similar to the Board\u2019s requirements that contracts specify goals and timetables. The court concluded:\n\u201cThe obligation to take affirmative action imports more than the negative obligation not to discriminate. * * * The Secretary\u2019s regulations require that contractors develop written affirmative action plans which shall \u2018provide in detail for specific steps to guarantee equal employment opportunity keyed to the problems and needs of members of minority groups, including, when there are deficiencies, the development of specific goals and timetables for the prompt achievement of full and equal employment opportunity.\u2019 41 C.F.R. 60 \u2014 1.40(a) (1970).\u201d 471 F. 2d 680, 684.\nThe constitution, statutes and public policy of Illinois are in accord with affirmative action requirements in contracts for public work. Thus, article I, section 17 of the constitution of the State of Illinois clearly prohibits discrimination in employment and the sale or rental of property, and section 4 of the Illinois Fair Employment Practices Act dealing with public contracts prohibits any unfair employment practice in connection therewith (Ill. Rev. Stat. 1973, ch. 48, par. 854). In addition, section 1 of \u201cAn Act to prohibit discrimination and intimidation on account of race, creed, color, sex or national origin in employment under contracts for public buildings or public works\u201d (Ill. Rev. Stat. 1973, ch. 29, par. 17) provides:\n\u201cNo person shall be refused or denied employment in any capacity on the ground of race, creed, color, sex or national origin, nor be discriminated against in any manner by reason thereof, in connection with the contracting for or the performance of any work or service of any kind, by, for, on behalf of, or for the benefit of this State, or of any department, bureau, commission, board, or other political subdivision or agency thereof.\u201d\nIn a very recent decision, this court considered a controversy involving a situation of similar nature to that in the case at bar. In Arthur Weil & Co. v. Board of Education (1st Dist. 1977), 49 Ill. App. 3d 649, 364 N.E.2d 542, the trial court entered an order directing the Board to award a contract on an elementary school to the plaintiff contractor.\nThe contractor had submitted a sealed bid for the work to be performed. Accompanying the bid was its \u201cAffirmative Action Pre-Award Survey\u201d which the Board had sent to prospective bidders and in which plaintiff had provided information concerning its affirmative action program.\nThe contractor was thereafter advised that it was the low monetary bidder. However, after reviewing plaintiff\u2019s Survey, Mr. Louis J. Barnes, the Board\u2019s Director of Equal Employment Opportunity, decided that plaintiff\u2019s program was unacceptable. The contractor requested the Director\u2019s permission to amend its Survey so as to have it reflect the employment of a minority subcontractor. The Director denied the request. Thereafter, the contractor petitioned for a temporary restraining order preventing the Board from awarding the contract to the next lowest bidder and for mandamus relief compelling the Board to permit the contractor to amend the program, to find its program acceptable, and to reinstate it as a competitive bidder and to award it the contract.\nOn appeal, this court stated that the record disclosed that the contractor\u2019s program did not satisfy all of the Board\u2019s acceptable program requirements, and also that the record disclosed no unreasonable or arbitrary exercise of statutory rule-making power (Ill. Rev. Stat. 1975, ch. 122, par. 34 \u2014 19) in making the acceptable requirements the contractor did not satisfy applicable to it. In denying the relief sought, the court concluded that:\n* * In the record before us we find no proof that defendants were under a clear legal duty to award the contract in question to plaintiff and no proof that plaintiff had a clear legal right to receive this contract.\u201d 49 Ill. App. 3d 649, 654.\nIn the instant case, we conclude that the Board had the authority and power to adopt its affirmative action program. The Guidelines of the Board, which are an embodiment of its affirmative action program, require:\n* *an analysis of areas within which the contractor is deficient in the utilization of minority groups and women, and further, goals and timetables to which the contractor\u2019s good faith efforts must be directed to correct the deficiencies \u201d \"\nWe find that plaintiff failed to submit an acceptable program, since it failed to set specific goals and timetables designed to overcome the underutilization of minority workers in its work force. Its bid failed to comply with the Board\u2019s affirmative action program, and the trial court erroneously interfered by injunction with the discretion reposed by law in the Board of Education. (Ill. Rev. Stat. 1973, ch. 122, pars. 34\u201421.3,10\u201420.21.) In People v. Omen (1919), 290 Ill. 59, 67, 124 N.E. 860, our supreme court stated:\n\u201cIt has been repeatedly held by this court that the statutory requirement that contracts for public improvements shall be let to the lowest responsible bidder does not require the letting of a contract to the lowest bidder upon the ascertainment of his financial responsibility, only; that the term \u2018responsible\u2019 includes the ability to respond by the discharge of the contractor\u2019s obligation in accordance with what may be expected or demanded under the terms of the contract, and that when the municipal authorities have exercised their discretion in the award of a contract for a public improvement the presumption obtains that the action of such authorities was regular and lawful, and the courts will not interfere, in the absence of fraud, with the exercise of official discretion by the municipal authorities in awarding such contract. (Hallett v. City of Elgin, 254 Ill. 343, and cases cited.)\u201d\nIn the case at bar, the defendant Board of Education properly exercised its statutory discretion in awarding contracts to the lowest responsible bidder who submitted an acceptable affirmative action program. Under these circumstances, especially where there is no allegation of fraud, the trial court improperly issued an injunction against the awarding and carrying out of said contracts. Where the performance of an official act such as the awarding of a contract for public work involves the exercise of judgment or discretion, the courts should not interfere to control or review the exercise of the statutory power vested in the public body.\nAccordingly, the judgment of the circuit court of Cook County is reversed.\nReversed.\nDOWNING, P. J., and STAMOS, J., concur.", "type": "majority", "author": "Mr. JUSTICE PUSATERI" } ], "attorneys": [ "Michael J. Murray, of Chicago (Richard E. Girard and Edward C. Peterson, of counsel), for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "JOHN N. BRUNSFELD & SONS, INC., Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants.\u2014(THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.)\nFirst District (2nd Division)\nNo. 76-334\nOpinion filed October 25, 1977.\nMichael J. Murray, of Chicago (Richard E. Girard and Edward C. Peterson, of counsel), for appellant.\nNo brief filed for appellee." }, "file_name": "0119-01", "first_page_order": 141, "last_page_order": 149 }