3 R Health Care Products v. Cardinal Health 110

• Court: Appellate Court of Illinois
• Decided: May 26, 2026
• Docket: 1-24-1911
• Status: Published

Opinion

2026 IL App (1st) 241911

SECOND DIVISION May 26, 2026

No. 1-24-1911 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

3 R HEALTH CARE PRODUCTS, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) 2024 L 1538 ) CARDINAL HEALTH 110, LLC, and ) THE DEPARTMENT OF CENTRAL ) Honorable MANAGEMENT SERVICES, ) Daniel J. Kubasiak, ) Judge Presiding Defendants-Appellees. ) _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Van Tine and Justice McBride concurred in the judgment and opinion.

OPINION

¶1 In 2021, Illinois sought bidders for a long-term commitment to supply various state

agencies with pharmaceutical goods. The bidding statute required that bidders subcontract a

certain amount of work to disadvantaged business enterprises, or “DBEs.” Plaintiff, 3R Health

Care Products, Inc. (“3R”), is a DBE that sought to be a subcontractor for the distributor

ultimately awarded the contract, defendant Cardinal Health 110, LLC (“Cardinal”). But 3R never

got that chance, as Cardinal obtained a full waiver of the contract’s DBE goal.

¶2 3R alleges the bidder obtained this DBE waiver by misrepresenting 3R’s capabilities to

the State. 3R also alleges it was the only DBE qualified to perform the work. Thus, absent those

misrepresentations, 3R alleges, Cardinal would have been obligated to include 3R in its bid. No. 1-24-1911

¶3 In 2024, after Cardinal was awarded the contract, 3R sued to recover for the portion of

the contract to which it was allegedly entitled. 3R sought, among other things, damages for

breach of contract and tortious interference with business expectancy, as well as a declaration

that Cardinal’s contract with the State was invalid.

¶4 The trial court dismissed the complaint, finding that 3R did not have standing to bring its

claims because the DBE “goal” was just that—a goal, not a legal obligation. So 3R had no

cognizable right to a subcontract or to a declaration that the contract was void, nor did 3R allege

a cognizable business expectancy.

¶5 We uphold the dismissal of the contract and declaratory-judgment counts, as 3R was not

a third-party beneficiary to the contract between Cardinal and the State and thus has no standing

to recover for a breach of that contract, to seek a rescission of that contract, or to obtain a

declaration that the contract is invalid.

¶6 But we reverse the dismissal of the tortious-interference claim. The allegations of the

complaint are sufficient, at the pleading stage, to allege that Cardinal intentionally sabotaged

3R’s statutory right to good-faith consideration as a DBE subcontractor. This right, plus the

allegation that plaintiff was the sole qualified subcontractor, is sufficient to plead an actionable

business expectancy. We remand for further proceedings.

¶7 BACKGROUND

¶8 As this case is at the pleading stage, we take the facts from the complaint and accept

them as true. Bosch v. NorthShore University Health System, 2019 IL App (1st) 190070, ¶ 5.

¶9 3R is an Illinois pharmaceutical distributor certified as a DBE under the Business

Enterprise for Minorities, Women, and Persons with Disabilities Act, 30 ILCS 575/0.01, et seq.

(West 2022), which we will call the “BEP Act.” (The complaint alleges that 3R’s principal

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owner and operator is Dr. Helen Randolph, is an African American woman.) Cardinal is a large

nationwide pharmaceutical distributor.

¶ 10 In June 2021, the Department of Central Management Services (CMS) issued a request

for proposal (RFP) seeking bids for a contract “to enable CMS, governmental units, and qualified

not-for-profit agencies to purchase drugs and pharmaceuticals on an as needed basis during the

contract period.” This June 2021 RFP contained an 8% DBE participation goal.

¶ 11 Under the BEP Act, to meet the DBE goal, bidders must either be a certified DBE

themselves or subcontract with a certified DBE. Id. § 2(A)(11). Or the bidder may obtain a

waiver of the DBE goal if the bidder demonstrates it made “good faith efforts” to secure DBE

participation but was unsuccessful. Id. § 7(3)(a). A bidder would not be considered to have made

good-faith efforts unless they contacted every registered DBE relevant to the RFP. A bidder’s

use of DBEs or attempt to solicit and request for waiver must be contained in a “utilization plan.”

Id. § 4(e).

¶ 12 That same month, June 2021, Cardinal contacted 3R to solicit 3R’s participation as a

certified DBE. After their meeting, Cardinal rejected 3R because it felt they were direct

competitors and “it would not benefit [Cardinal] to use [3R’s] services.” Cardinal then submitted

its bid and sought a waiver of the DBE goal. In August, CMS granted the waiver, and Cardinal

was awarded the contract. 3R claims the waiver was granted “based on [Cardinal’s]

misrepresentations in its DBE utilization plan.”

¶ 13 In September, 3R protested the award of the contract to Cardinal because it “did not make

good faith efforts to allow [3R’s] participation in the First Contract.” CMS overruled 3R’s

protest but nevertheless cancelled the first award “based on [3R’s] First Protest.”

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¶ 14 In October, CMS re-issued the RFP, which was identical except that the DBE

participation goal was raised from 8% to 9%. In November, Cardinal once again solicited 3R as a

potential DBE candidate. 3R reiterated its ability to fulfill the subcontract and submitted a

participation plan in November. 3R and Cardinal then met once again.

¶ 15 In that meeting, Cardinal expressed concern about “potential regulatory issues” in a

subcontract between the two. 3R attempted to dispel these concerns, explaining that it “was

already performing these duties” in a separate contract with the Department of Corrections, or

“IDOC.” Cardinal then asked only for the details of 3R’s IDOC contract, “rather than [3R’s]

ability to perform under the terms of the Second Contract—which [3R] was ready, willing, and

able to comply with.”

¶ 16 In December, Cardinal once again rejected 3R’s participation. While it was still

concerned that 3R was a competing distributor, it assured 3R that it was not the reason for

rejection this time around. Instead, Cardinal identified two concerns. First, because 3R was a

distributor, 3R would not be able to satisfy the one-day turnaround required by the RFP. That

turnaround was far tighter than the four-to-six-day delivery time in 3R’s IDOC contract. Second,

Cardinal claimed that 3R refused to provide a product list or price quote.

¶ 17 The complaint alleges that each reason was specious. The tighter turnaround under the

“Second Contract” was not a problem; just because its IDOC contract allowed for more time did

not mean that 3R could not perform a quicker turnaround. And Cardinal was focusing solely on

the products 3R delivered to IDOC; Cardinal “did not afford [3R] an opportunity to provide a list

of relevant products it could obtain pursuant to the requirements of the Second Contract.”

¶ 18 Cardinal once again sought a waiver of the RFP’s DBE goal. In the second utilization

plan, Cardinal told the State that it contacted all nine certified DBEs relevant to the RFP; five

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declined to submit proposals, two were “non-responsive,” and “one was rejected for failure to

provide information, including proof of licensing after multiple requests and attempts.” The plan

also stated that 3R could not perform as a subcontractor because of its “inability to meet contract

requirements and lack of needed information.”

¶ 19 Based on the statements in the utilization plan, Cardinal was again granted a full DBE

waiver and was awarded the contract in January 2022. According to 3R, this 10-year contract has

a total value “exceed[ing] $600,000,000.00.” 3R filed another protest; the protest was again

rejected. This time, however, CMS allowed the award to Cardinal to stand.

¶ 20 In February 2024, 3R filed suit. Relevant to this appeal, the complaint alleged breach of

contract (count II), tortious interference with business expectancy (count III), and a declaratory

judgment that the contract between CMS and Cardinal was invalid (count IV).

¶ 21 The contract claim alleged that, though 3R was obviously not a party to the contract

between CMS and Cardinal, 3R was an intended third-party beneficiary due to the rights granted

to DBEs under the BEP Act. In much the same vein, the tortious-interference count alleged that

3R’s rights as a DBE entitled it to Cardinal’s good-faith effort to secure 3R’s participation, but

Cardinal rejected 3R in bad faith. The declaratory-judgment count alleged that the contract

between CMS and Cardinal, including most specifically the DBE waiver, was based on

misrepresentations by Cardinal and was thus invalid.

¶ 22 Defendants moved to dismiss, primarily arguing that (1) 3R was not a third-party

beneficiary and could not sue for breach of contract, (2) 3R did not have a valid business

expectancy because it had no right to participate as a subcontractor, and (3) 3R’s declaratory

judgment action was improper because it was, in actuality, a claim for rescission.

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¶ 23 The circuit court dismissed the complaint with prejudice. The court agreed that 3R was

not a third-party beneficiary of the CMS-Cardinal contract. In the court’s view, that conclusion

defeated both the contract and tortious-interference counts; because 3R was not a third-party

beneficiary, the court reasoned, it could not have a reasonable business expectancy. The court

further reasoned that the DBE goal was not a legal obligation and that, in any event, 3R failed to

plead that it was the only eligible DBE, rendering its claim of damages speculative.

¶ 24 Finally, the court construed the count for declaratory relief as a thinly veiled rescission

claim that 3R could not plead, as it was not a party to the contract or a third-party beneficiary.

And the court ruled that 3R had no right to challenge the waiver of the DBE goal.

¶ 25 This timely appeal followed.

¶ 26 ANALYSIS

¶ 27 3R argues the court erred in dismissing the relevant counts of the complaint. And even if

the court correctly dismissed the claims, 3R says that it should have been allowed to re-plead.

¶ 28 A dismissal under section 2-615 of the Code of Civil Procedure concerns the legal

sufficiency of the complaint. See 735 ILCS 5/2-615 (West 2022); Quiroz v. Chicago Transit

Authority, 2022 IL 127603, ¶ 11. The complaint should not be dismissed unless no set of facts

would entitle the plaintiff to recover. Turner v. Memorial Medical Center, 233 Ill. 2d 494, 499

(2009). We accept as true all well-pleaded facts and draw all reasonable inferences in favor of

the plaintiff. Quiroz, 2022 IL 127603, ¶ 11. Our review is de novo. Id.

¶ 29 I. The Procurement Process and the BEP Act

¶ 30 Running throughout this appeal is the fundamental question whether the BEP Act creates

a goal of DBE participation or a mandate. As we explain below, the BEP Act mandates a good-

faith attempt at DBE utilization, but it does not mandate ultimate DBE participation.

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¶ 31 Our construction of statutes “is guided by familiar, well-established principles.” Tillman

v. Pritzker, 2021 IL 126387, ¶ 17. When the language is clear and unambiguous, we give it its

plain, ordinary meaning. Id. Our analysis involves the intersection of two laws, the BEP Act and

the Illinois Procurement Code, or the “Code” for ease. 30 ILCS 500/1-1 et seq. (West 2022).

¶ 32 Procurement, the process by which the State enters into contracts, is governed by the

Code and intended to enshrine the “principles of competitive bidding and economical

procurement practices” for “all purchases and contracts by or for any State agency.” Id. § 1-5.

The default method of procurement is “by competitive sealed bidding.” Id. § 20-10(a).

¶ 33 The State issues an invitation for bids that describes the material terms and conditions of

the procurement. Id. § 20-10(b). The bidding process usually includes a “request for proposal,”

or “RFP,” in which the procuring agency seeks information from bidders on the work. Id. § 1-

15.75. A bidder’s response to the invitation to bid is its “bid.” Id. § 1-15.01.

¶ 34 The submitted bids are “evaluated based on the requirements set forth in the invitation for

bids.” Id. § 20-10(e). When bidding and evaluation are complete, “[t]he contract shall be

awarded *** to the lowest responsible and responsive bidder whose bid meets the

requirements and criteria set forth in the invitation for bids.” Id. § 20-10(g). The contract is the

actual agreement between the State and the bidder. Id. § 1-15.30.

¶ 35 The Code “is subject to [the] applicable provisions of” the BEP Act. Id. § 45-65(5).

¶ 36 The BEP Act was designed to promote the development of businesses owned and

operated by minorities and women by encouraging their inclusion in State contracts. 30 ILCS

575/1 (West 2022). It establishes “an aspirational goal” to award a certain percentage of State

work to businesses owned by disadvantaged groups. Id. § 4(a).

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¶ 37 As of 2024, most contracts sought by State agencies contain participation goals. See 30

ILCS 575/3.5 (West 2024). When a contract includes a participation goal, a bidder is required to

submit a “utilization plan” with its bid. 30 ILCS 575/4(e) (West 2022). This utilization plan must

demonstrate that either (1) the bidder met the DBE goal or (2) the bidder has requested a full or

partial waiver of the DBE requirement. Id. § 2(A)(11). The failure to include a utilization plan

renders the bid “non-responsive.” Id. § 4(e). A non-responsive bidder cannot be awarded the

contract. 30 ILCS 500/20-10(g) (West 2022).

¶ 38 As noted, a bidder may request a waiver of any DBE participation goal “prior to the

contract award.” 30 ILCS 575/7(3) (West 2022). The bidder must demonstrate that it made a

good-faith effort to comply with the goals for DBE participation. Id. The RFP here states that,

“to be considered as having completed a ‘good faith effort’, you must contact 100% of all

vendors and enter their responses in the BEP Utilization Plan.”

¶ 39 Whether to grant a waiver is determined by the “Business Enterprise Council,” a council

of state officials and private appointees created under the BEP Act. Id. §§ 7(3), 5. In determining

whether to grant a waiver, the Business Enterprise Council considers the reasons for the

requested waiver, including whether a good-faith effort at participation was made, how many

waivers the vendor has received previously, and the vendor’s historical use of minority

businesses. Id. § 7(3)(b).

¶ 40 Finally, the law deems it a material breach of the contract, subject to termination or

default, if the vendor fails to comply with its DBE utilization plan or gives false or misleading

information about its DBE utilization or its good-faith efforts at compliance. Id. § 8(2).

¶ 41 To summarize: a bidder must submit a utilization plan with its bid. Id. § 4(e); 30 ILCS

500/20-10(g) (West 2022). That utilization plan must demonstrate that either (1) the bidder

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complied with the DBE goal in the RFP or (2) the bidder has requested a full or partial waiver of

that compliance. Id. § 2(A)(11). Before awarding the contract, the Business Enterprise Council

grants or denies any request for waiver by determining whether the bidder made a good-faith

attempt at compliance with the DBE goal. Id. §§ 7(3), 2(A)(13) (defining “good faith effort”).

And once the contract is awarded, if the State finds that the contractor provided false information

regarding its DBE compliance, the State may deem the contract in material breach. Id. § 8(2).

¶ 42 As should be clear by now, a contractor that is not, itself, a DBE must make a good-faith

attempt to secure DBE participation as required by the State. That duty is mandatory. But if that

good-faith effort does not result in DBE participation and the governmental entity is satisfied

with the bidder’s good-faith effort, the government may waive DBE participation. A good-faith

attempt at DBE inclusion is mandatory, but DBE inclusion itself is not.

¶ 43 Armed with these conclusions, we proceed to consider each individual count.

¶ 44 II. Breach of Contract

¶ 45 3R’s contract claim alleges that Cardinal breached its contract by not complying with the

DBE goals required for that contract. Though 3R acknowledges that it was not a party to the

contract between CMS and Cardinal, 3R says it was an intended thirty-party beneficiary of the

contract and thus has standing to complain of a breach.

¶ 46 The law is clear that “ ‘[o]nly a party to the contract, one in privity with a party to

the contract, or a third-party beneficiary of the contract has standing to sue on a contract.’ ” Stop

NorthPoint, LLC v. City of Joliet, 2024 IL App (3d) 220517, ¶ 70 (quoting Haake v. Board of

Education for Glenbard Township High School District 87, 399 Ill. App. 3d 121, 128-29 (2010)).

There are two types of third-party beneficiaries, intended and incidental. Carlson v.

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Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 14. Because 3R claims to be an

intended third-party beneficiary, we train our focus there.

¶ 47 An intended beneficiary of a contract “has rights and may sue” for breach of that

contract. Id. The question is whether the contracting parties intended to confer a benefit on the

alleged third party. XL Disposal Corp. v. John Sexton Contractors Co., 168 Ill. 2d 355, 361

(1995). The law is clear that an intent to confer such status on a non-party to the contract “must

be shown by an express provision in the contract identifying the third-party beneficiary by name

or by description of a class to which the third party belongs.” Midwest Neurosurgeons, LLC v.

F.W. Electric, Inc., 2025 IL App (5th) 240957, ¶ 15; see Holmes v. Federal Insurance Co., 353

Ill. App. 3d 1062, 1066 (2004).

¶ 48 That is where 3R runs into problems. Nowhere in the contract between CMS and

Cardinal is 3R referenced by name or by category. There is nothing in the contract indicating that

3R or any other DBE is entitled to any portion of the work. And that, of course, is because

Cardinal was granted its waiver from the DBE requirement before contracting with Cardinal.

¶ 49 Recall that the Business Enterprise Council’s decision to waive or not waive DBE

participation comes before the contract is awarded, as part of the bidding process. 30 ILCS

575/4(e), 7(3) (West 2022). So by the time the contract was fully executed, the decision had

already been made not to include DBEs in the work.

¶ 50 Quite obviously, then, the contract did not list 3R specifically or DBEs in general as

subcontractors on this contract. That simple fact distinguishes this case from decisions cited by

3R that found that a DBE was a third-party beneficiary of a contract. See Advanced Concepts

Chicago, Inc. v. CDW Corp., 405 Ill. App. 3d 289, 296 (2010) (contract specifically identified

plaintiff DBE as subcontractor and also mandated that 40% of work be performed by DBEs

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generally); Level-1 Global Solutions, LLC v. Presidio Networked Solutions Group, LLC, No. 23

C 2978, 2023 WL 9892111, at *1, *3 (N.D. Ill. Dec. 4, 2023) (contract contained letter of intent

and utilization plan identifying plaintiff specifically as DBE); Organization of Minority Vendors,

Inc. v. Illinois Central Gulf R.R., 579 F. Supp. 574, 598-99 (N.D. Ill. 1983) (contract listed as

“legal requirement” certain “ ‘minority business enterprise affirmative action program[s]’ ” and

bound railroad to provide MBEs with “maximum opportunity” to participate in contract).

¶ 51 With those undeniable facts, 3R is reduced to arguing that the BEP Act is incorporated

into the contract between CMS and Cardinal. So it is, but part of that incorporation is the

possibility of a waiver of DBE participation. As we have discussed at length, a waiver of DBE

participation is fully consistent with the BEP Act.

¶ 52 The court correctly ruled that the parties to the contract did not intend to confer third-

party beneficiary status on 3R. As 3R was neither a party to nor a third-party beneficiary of the

contract between CMS and Cardinal, dismissal of the contract count was proper. Stop

NorthPoint, 2024 IL App (3d) 220517, ¶ 70.

¶ 53 III. Declaratory Judgment

¶ 54 3R sought a declaration that, because Cardinal misrepresented 3R’s qualifications to get a

waiver of its DBE obligations, the waiver is invalid and thus so is the contract between CMS and

Cardinal. This count was properly dismissed for much the same reason as the contract count.

¶ 55 A claim for declaratory judgment has always required “(1) a plaintiff with a legal tangible

interest, (2) a defendant with an opposing interest, and (3) an actual controversy between the

parties involving those interests.” Cahokia Unit School District No. 187 v. Pritzker, 2021 IL

126212, ¶ 36. As we have just found, 3R has no tangible legal interest in this contract; it is

neither a party to the contract nor a third-party beneficiary.

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¶ 56 If, as explained above, a party like 3R has no standing to complain of a breach of that

contract—because it has no legal interest in that contract—we fail to see how 3R would have a

right to seek cancellation of that contract or, for that matter, any other right to affect that

contract. 3R would argue that it’s the DBE waiver it attacks as invalid, but that is a distinction

without a difference; attacking the waiver incorporated into the contract is no different in

substance or form than attacking the contract itself. If 3R has no tangible legal interest in that

contract, it has no legal basis to challenge that contract, whatever that reason may be.

¶ 57 Coming at this a slightly different way but with the same underlying precepts, the court

below and Cardinal claimed that this declaratory-judgment count was a thinly veiled claim for

rescission, an equitable remedy that cancels a contract and restores the parties to their pre-

contract status. See Horwitz v. Sonnenschein Nath & Rosenthal, 2018 IL App (1st) 161909, ¶ 33.

And because 3R had no standing to assert a claim for breach of contract, they reasoned, it had no

standing to raise the equivalent of a rescission claim to cancel that contract, either.

¶ 58 That is a different path to the same conclusion. A party that lacks standing to raise a

contract-related claim cannot back-door that claim in via declaratory judgment; the tangible-

legal-interest requirement dooms that plan. See Western National Bank of Cicero v. Moenning,

224 Ill. App. 3d 67, 75 (1991) (plaintiff, who assigned away 100% interest in land trust, “had no

legal, tangible interest sufficient to sustain an action for declaratory relief” regarding terms of

trust).

¶ 59 That is not to say a bidder can fraudulently obtain a DBE waiver with impunity. But the

right to raise a contractual challenge belongs to the State, the other party to the contract. Any

fraud or material misrepresentation by the vendor in its DBE utilization or its good-faith efforts

at compliance “shall constitute a material breach of the contract and entitle the State agency ***

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to declare a default, terminate the contract, or exercise those remedies provided for in the

contract, at law, or in equity.” 30 ILCS 575/8(2) (West 2022); see 44 Ill. Adm. Code 30.100

(2022) (providing State various remedies to punish vendor who violates its commitments

regarding DBEs or good faith waiver). 3R can cite no statute or case law granting it a

corresponding right.

¶ 60 We thus uphold the dismissal of count IV, the declaratory-judgment count.

¶ 61 IV. Dismissal with Prejudice

¶ 62 3R claims that, even if it was proper to dismiss these counts, they should have been

dismissed without prejudice, allowing 3R to amend them. But as the circuit court noted, the

problem with these counts wasn’t insufficient pleading; it was that they failed as a matter of law.

3R says that the court never stated that “amendment would be futile,” but there is no such

requirement. And in any event, the court all but said that without saying it. There was nothing 3R

could have added in terms of factual specificity that would have saved these counts—notably, 3R

makes no attempt to provide us examples of any such facts. We find no error here.

¶ 63 V. Tortious Interference

¶ 64 We turn to 3R’s claim for tortious interference with business expectancy. Plaintiff must

plead (1) a reasonable expectancy of entering into a business relationship, (2) the defendant’s

knowledge of the expectancy, (3) the defendant’s intentional, unjustified interference with that

expectancy, and (4) damage to the plaintiff. Voyles v. Sandia Mortgage Corp., 196 Ill. 2d 288,

300-01 (2001); Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 406-07 (1996).

¶ 65 The court dismissed the claim on the first element, finding that 3R lacked a valid business

expectancy. 3R says the legal requirements of the BEP Act, along with its factual allegations,

were sufficient to plead a cognizable expectancy. Under these unique allegations, we agree.

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¶ 66 An actionable business expectancy is one that is “sufficiently concrete” to rise above the

mere “hope of consummating a business relationship.” 540 North Lake Shore Drive

Condominium Ass’n v. MCZ Development Corp., 2025 IL App (1st) 230733, ¶ 38. And even

when the possibility of consummating a transaction “is more than a hope, even when it has

advanced to serious, good-faith negotiations, as long as either side is free to walk away for

whatever reason, courts have been reluctant to enforce an expectation that the parties will

ultimately consummate the relationship.” Id. ¶ 41.

¶ 67 For example, it is not enough to be the “leading candidate” for a job; given the level of

subjectivity involved, the choice of other candidates, and the possibility of cold feet, “[t]he hope

of receiving a job offer is not a sufficient expectancy.” Anderson, 172 Ill. 2d at 408.

¶ 68 In contrast, consider Malatesta v. Leichter, 186 Ill. App. 3d 602, 617 (1989), where the

plaintiff wanted to purchase a car dealership and got as far as a buy-sell agreement with the

current owner; he was only awaiting final approval from national headquarters. We found his

expectation sufficiently concrete, as he was the only person with a buy-sell agreement with the

current owner and was just one thumbs-up away from owning that franchise. Id. at 617-18.

¶ 69 Citing two federal decisions, Cardinal claims that courts have repeatedly rejected

tortious-interference claims in circumstances involving bids. In 3DGS, LLC v. Chai Trust Co., 19

CV 7524, 2020 WL 7353406, at *9 (N.D. Ill. Dec. 15, 2020), the court found no reasonable

expectancy during a competitive bidding process: “All of the bidders were competing with each

other, and it cannot be the case that every potential bidder had a reasonable business expectancy

***.” The court found insufficient facts to warrant an expectancy despite the fact “[t]hat 3DGS

was the second lowest bidder and otherwise eligible for the contract.” Id. The existence of “other

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competitors” and lack of facts reinforcing the expectancy—such as a history of contracting with

the company—made its chances of winning “far from a sure thing.” Id.

¶ 70 In United States ex rel. Blaum v. Triad Isotopes, Inc., 104 F. Supp. 3d 901, 931 (N.D. Ill.

2015), the court found that a plaintiff in an anonymous-bidding process did not have a reasonable

expectancy, as “all competitors theoretically had an equal expectancy of winning the contract.”

The court wrote that “a reasonable expectancy of entering into a fair bidding process *** is not

the same as a reasonable expectancy of entering into a business relationship.” Id. (emphasis in

original). The court noted that its conclusion might be different “if [the plaintiff] had been the

only bidder.” Id. (emphasis added).

¶ 71 Here, however, the complaint alleges that 3R was the only game in town, Cardinal’s only

choice among potential DBE vendors. According to the complaint, Cardinal told the State that,

of the nine DBE organizations Cardinal was required to contact, “five companies declined to

submit a proposal ***, two were non-responsive, and one was rejected for failure to provide

information.” Simply put, the complaint alleged that, “[u]pon information and belief,” 3R “was

and is the only DBE organization qualified, willing, and able to perform subcontracting duties”

under the contract between CMS and Cardinal.

¶ 72 And we reiterate from our earlier discussion that a bidder like Cardinal was under a

mandatory duty to act in good faith to secure the inclusion of a DBE vendor. Cardinal was not

“free to walk away for whatever reason” from discussions with 3R. 540 North Lake Shore Drive,

2025 IL App (1st) 230733, ¶ 41. The BEP Act does not require ultimate inclusion of DBEs, but it

does mandate a good-faith effort at inclusion.

¶ 73 So as alleged, we have none of the vagaries here of a typical bidding process. 3R has

alleged that (1) it was fully qualified to perform this subcontract work and (2) it had literally no

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competition from other DBEs. And Cardinal was under a mandatory duty to consider 3R in good

faith. The complaint alleges an actionable business expectancy.

¶ 74 Cardinal’s attempts to avoid this result are unpersuasive. Cardinal argues that the

allegation that 3R was the sole qualified bidder was made on “information and belief” and thus

was “conclusory.” Cardinal cites no support for that proposition; the case law is to the contrary.

¶ 75 To be sure, “ ‘[a]n allegation made on information and belief is not equivalent to an

allegation of relevant fact’ *** but at the pleading stage a plaintiff will not have the benefit of

discovery tools” to confirm certain facts. Patrick Engineering, Inc. v. City of Naperville, 2012 IL

113148, ¶ 40 (quoting Whitley v. Frazier, 21 Ill. 2d 292, 294 (1961)). Thus, allegations based on

information and belief “can ‘survive dismissal if the plaintiff sufficiently pleads the factual basis

informing his belief.’ ” Community Home Physicians, LLC v. De La Mora, 2026 IL App (3d)

250174-U, ¶ 62 (quoting Antonacci v. Seyfarth Shaw, LLP, 2015 IL App (1st) 142372, ¶ 32).

¶ 76 Here, 3R pleaded that none of the other potential DBE vendors were viable candidates,

and that this information was based on what Cardinal told the State (presumably in its utilization

plan) in attempting to secure a waiver. 3R also pleaded that it was, itself, a qualified candidate.

That was a sufficient foundation for 3R’s allegation, on information and belief, that it was the

sole qualified DBE vendor.

¶ 77 Cardinal also says that 3R “wrongly assumes it would have secured a subcontract but for

Cardinal Health’s alleged interference.” That is an odd objection, given that we are at the

pleading stage, taking all well-pleaded allegations as true. The complaint alleges that 3R stood

ready and able to perform the subcontract, that Cardinal had a duty to negotiate in good faith

with 3R, and that Cardinal did not negotiate in good faith, denying 3R the work for no valid

reason and misrepresenting 3R’s qualifications to the State to secure a DBE waiver.

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¶ 78 Count III stated a viable claim for tortious interference with business expectancy.

¶ 79 CONCLUSION

¶ 80 The judgment of the circuit court is reversed as to count III. The judgment of the circuit

court is otherwise affirmed. We remand for further proceedings.

¶ 81 Affirmed in part and reversed in part; cause remanded.

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3 R Health Care Products, Inc. v. Cardinal Health 110, LLC, 2026 IL App (1st) 241911

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 24-L-1538; the Hon. Daniel J. Kubasiak, Judge, presiding.

Attorneys Garrett von Schaumburg and Michael Haeberle, of Patterson for Law Firm, LLC, of Chicago, for appellant. Appellant:

Attorneys David M. Friebus and Maria A. Boelen, of Baker & Hostetler for LLP, of Chicago, for appellee Cardinal Health 110, LLP. Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Leigh J. Jahnig, Assistant Attorney General, of counsel), for other appellee.

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