No. 2--05--0079 ______________________________________________________________________ ________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________ ________
THE BOARD OF TRUSTEES OF ) Appeal from the Circuit Court COMMUNITY COLLEGE DISTRICT No. ) of Du Page County. 502, COUNTY OF DU PAGE, ) ) Plaintiff-Appellant, ) ) v. ) No. 04--CH--349 ) THE DEPARTMENT OF PROFESSIONAL ) REGULATION, n/k/a The Department of ) Financial and Professional Regulation, and ) FERNANDO E. GRILLO, Director of the ) Department of Professional Regulation, n/k/a ) The Department of Financial and Professional ) Regulation, ) Honorable ) Edward R. Duncan, Jr., Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________ ________
JUSTICE CALLUM delivered the opinion of the court:
I. INTRODUCTION
Plaintiff, the Board of Trustees of Community College District No. 502, County of Du
Page, commenced this action seeking a declaration that the College of Du Page (College)
is a "political subdivision" subject to the Local Government Professional Services Selection
Act (Local Government Selection Act) (50 ILCS 510/0.01 et seq. (West 2004)), which does
not expressly prohibit political subdivisions from issuing initial requests for proposals that No. 2--05--0079
ask interested architects, engineers, and land surveyors for information about their fees.
Defendants, the Department of Professional Regulation, n/k/a the Department of Financial
and Professional Regulation (Department), and Department Director Fernando Grillo,
moved to dismiss on the grounds that (1) regardless of whether the College is a "political
subdivision" under the Local Government Selection Act or a "state agency" subject to the
Architectural, Engineering, and Land Surveying Qualifications Based Selection Act
(Qualifications Based Selection Act) (30 ILCS 535/1 et seq. (West 2004)), it may not
request fee information in its initial request for proposals; and (2) there was no standing or
an actual controversy. The trial court accepted both grounds and dismissed the complaint.
We hold that (1) the complaint sufficiently alleges standing and an actual
controversy; (2) the College is a "political subdivision" and therefore subject to the Local
Government Selection Act; and (3) the Local Government Selection Act does not prohibit
the College from soliciting fee or cost information before selecting the most qualified firm for
negotiation. Accordingly, we reverse and remand.
II. BACKGROUND
Filed on March 3, 2004, plaintiff's complaint alleged the following. On November 5,
2002, the College received the authority via a public referendum to issue $183 million in
construction bonds. The College began the process of engaging design professionals to
assist in various construction projects to be completed over the next several years. In
2003, the College published requests for proposals for architectural, design management,
and construction management services.
In a section entitled "format of proposals," the requests instructed that the proposals
"[s]tate the price to the College on a fixed fee, not-to-exceed basis for each Phase of the
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project. Also, provide a cost breakdown of each element of each phase of the project."
Another request for proposals stated that the "[f]ee proposal shall be a lump sum fixed fee
for complete A/E services." It required a fixed-fee proposal, a breakdown of the fee by
phase, an hourly rate for all personnel categories, and an estimation and breakdown of
reimbursable expenses. The request instructed that the fee proposal should be submitted
along with the other requested materials. In a separate section entitled "selection criteria,"
the requests for proposals listed the following criteria: the firm's overall professional
qualifications; relevant experience in designing similar educational or other institutional
facilities; knowledge of and experience with code requirements for educational facilities in
Illinois; performance record on public contracts; resources appropriate for the scope of
work and the project schedule; proposed staffing plan and team organization; commitment
to the College's schedule; financial responsibility; quality of work as demonstrated by recent
construction documents; understanding of specific issues; and design approach to the
project.
On May 6, 2003, the College received a letter from Eileen McGuiness, one of the
Department's attorneys, stating:
"I am in receipt of a Request for Proposal issued by [the College] ***. I am
requesting that you review *** the Local [Government] Professional Services
Selection Act ***.
The selection process for Architects and Professional Engineers, Structural
Engineers, and/or Land Surveyors differs from the bid process for construction
companies. The Department enforces against its licensees violations of the [Local
Government Selection Act]. The legislature has clearly articulated its intent to
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supplant competition for local units of government *** in regard to the services of
Architects, Engineers and land surveyors. *** We would prefer to not have any
violation to prosecute against an Architect or Professional Design Firm. I am
seeking your assistance toward this end."
On June 18, 2003, the College received a letter from the executive vice-president of
the Illinois Council of the American Institute of Architects. The letter expressed concern
about the College's request for fee information and asserted that, under the Local
Government Selection Act:
"Qualifications, not fees, are to be used as the determining factor in the initial
selection process. The purpose of the [Local Government Selection Act] is to
protect the owner and public interest by ensuring the selection of a firm qualified to
do the work, as opposed to merely a low bidder.
***
A fee should not be requested to be included in the proposal, even as only
one of many proposal requirements. Once a fee is included, there is a strong
tendency for this fee to have undue and often decisive weight in the selection
decision."
On February 13, 2004, McGuiness sent the College a letter requesting a list of the
architectural or engineering firms to which the College had sent requests for proposals
regarding a certain project. On February 19, 2004, the Department issued the College a
subpoena duces tecum seeking proposals that architectural and engineering firms had
submitted to the College for six planned projects. On February 29, 2004, McGuiness sent
to Burnidge & Cassell Associates, an architectural firm, a letter stating, "if you submit
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price/fees as part of a submission in response to a Request for Qualifications (or
sometimes mistitled Request for Proposal) you can expect to be prosecuted."
The complaint alleged that qualified and interested architectural and engineering
firms have declined to submit, have threatened to withdraw, or have withdrawn their
proposals because of the Department's threats to prosecute. Plaintiff requested the trial
court to (1) declare that the Local Government Selection Act does not prohibit schools and
units of local government from soliciting fee information in initial requests for proposals; (2)
enjoin the Department from threatening schools and units of local government with
subpoenas and freedom of information requests directed at responses to requests for
proposals; (3) enjoin the Department from threatening design professionals with
prosecution or disciplinary action for responding to solicitations that request fee proposals;
and (4) quash the subpoena the Department issued against the College.
With its complaint, plaintiff filed an emergency motion for a temporary restraining
order and to quash the Department's subpoena. On March 4, 2004, the trial court entered
an agreed order stating that the College is not required to respond to the Department's
subpoena and that the Department will not threaten prosecution against any architect,
engineer, or land surveyor who includes fee information in his or her response to a request
for proposals. On March 12, 2004, the Department issued an order quashing the subpoena
issued against the College and sent a letter to plaintiff's counsel, stating its intention not to
litigate the matter any further and that it would not issue any new subpoenas in connection
with the six planned projects. Because the Department had quashed the subpoena, the
trial court denied plaintiff's emergency motion for a temporary restraining order.
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Defendants moved to dismiss the complaint, originally pursuant to sections 2--615
and 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619(a)(9)
(West 2004)). Defendants then filed an amended motion to dismiss citing only section 2--
615. The amended motion argued that (1) there was no constitutional basis for the
complaint; (2) the Qualifications Based Selection Act and the Local Government Selection
Act authorized the Department to conduct the activities of which plaintiff complained; (3) the
claim was not ripe and did not allege any actual injury; and (4) the complaint asserted
claims on behalf of unnamed parties. In response to the motion, plaintiff filed an
amendment to the complaint, listing 14 additional planned projects for which the College
will require architectural, engineering, and land surveying services.
The trial court found that the Qualifications Based Selection Act applied to the
College and precluded the College from requesting fee information in its initial request for
proposals and that there was no viable controversy. Plaintiff timely appealed. The Illinois
Council of the American Institute of Architects, the American Council of Engineering
Companies of Illinois, the Illinois Society of Professional Engineers, the Illinois Professional
Land Surveyors Association, and the Structural Engineers Association of Illinois have jointly
submitted an amicus curiae brief.
III. DISCUSSION
A. Standard of Review
Plaintiff appeals from the dismissal of its complaint. Defendants' original motion to
dismiss cited both sections 2--615 and 2--619 of the Code, while the amended motion
mentioned only section 2--615. Defendants' claim that there is no actual controversy relies
on matters outside the complaint and therefore should have been brought pursuant to
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section 2--619. However, the mislabeling of the motion does not require a reversal. In its
brief, plaintiff acknowledges the mislabeling and does not claim any prejudice as a result.
See Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 758
(2004). Accordingly, we will treat the motion as a combined motion brought under both
sections 2--615 and 2--619. See 735 ILCS 5/2--619.1 (West 2004).
A section 2--615 motion to dismiss challenges the legal sufficiency of the complaint
by alleging defects on its face. Suburban 1, Inc. v. GHS Mortgage, LLC., 358 Ill. App. 3d
769, 772 (2005). When reviewing a section 2--615 motion to dismiss, a court must accept
as true all well-pleaded facts and interpret the allegations in the light most favorable to the
plaintiff. Young v. Bryco Arms, 213 Ill. 2d 433, 441 (2004). A court should grant a section
2--615 motion to dismiss only if it is apparent that the plaintiff cannot prove any set of facts
that will entitle it to recover. Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App.
3d 65, 71 (2005).
A motion to dismiss under section 2--619(a)(9) admits the legal sufficiency of the
complaint and raises defects, defenses, or other affirmative matters that appear on the face
of the complaint or are established by external submissions and that act to defeat the
plaintiff's claim. McElmeel v. Village of Hoffman Estates, 359 Ill. App. 3d 824, 826-27
(2005). In ruling on a section 2--619 motion, a court must accept as true all well-pleaded
facts (Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995)), and must
view the pleadings and supporting evidence in the light most favorable to the plaintiff
(Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383 (2004)). The question is whether the
existence of a genuine issue of material fact precludes a dismissal or, absent such an issue
of fact, whether a dismissal is proper as a matter of law. Northern Trust Co. v. County of
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Lake, 353 Ill. App. 3d 268, 276 (2004). We review de novo a dismissal under either
section. Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 699 (2005).
B. Standing/Actual Controversy
Defendants' argument that there is no actual controversy has two bases. The first
aspect of the argument is that, because the Department withdrew the subpoena it issued to
plaintiff in connection with the 6 existing projects, and the 14 projects named in the
amendment to the complaint are merely prospective, there is no immediate controversy.
The second aspect of the argument is that, because the Department regulates design
professionals, plaintiff does not have standing to complain about any action the Department
takes in connection with its oversight of those professionals' activities.
The doctrine of standing is designed to insure that the courts are accessible to
parties to resolve actual controversies between them and not to address abstract
questions, moot issues, or cases brought on behalf of others who may not desire judicial
aid. Burton v. Ramos, 341 Ill. App. 3d 122, 127 (2003). A party establishes standing by
demonstrating an injury to a legally cognizable interest. Village of Chatham v. County of
Sangamon, 216 Ill. 2d 402, 419 (2005). In the context of a declaratory judgment action,
there must be an actual controversy between adverse parties, with the party requesting the
declaration possessing some personal claim, status, or right that is capable of being
affected by the grant of such relief. Village of Chatham, 216 Ill. 2d at 420.
We conclude that plaintiff has standing to pursue its claim. If plaintiff is correct that
the College has the right to solicit fee information in its initial requests for proposals, then
the Department has taken direct action that has interfered with that right. Although the
Department has withdrawn its subpoena, the fact remains that the Department has targeted
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design professionals who have responded to plaintiff's requests and has issued them
letters threatening prosecution. Although the Department has stated that it will no longer
threaten to prosecute design professionals who provide the requested fee information, the
complaint essentially alleges that the earlier threats have had a chilling effect. Thus, the
threats have directly interfered with plaintiff's ability to obtain the desired information. There
is an actual dispute here that can be resolved by the grant or denial of the relief plaintiff
seeks.
C. The College's Right to Solicit Fee information
Defendants argue that the College is a "State agency" under the Qualifications
Based Selection Act, which expressly prohibits a State agency from formally or informally
requesting fee information in its initial request for proposals. Plaintiff argues that it is a
"political subdivision" under the Local Government Selection Act, which contains no such
provision. Defendants reply that, even if the Local Government Selection Act applies, its
purpose, like that of the Qualifications Based Selection Act, is to require that the
governmental unit or agency select design professionals on the basis of qualifications
instead of price. Therefore, defendants urge us to interpret the Local Government
Selection Act as containing a similar ban against soliciting fee information.
1. Qualifications Based Selection Act
Enacted in 1992, the Qualifications Based Selection Act states:
"It is the policy of State agencies of this State to publicly announce all
requirements for architectural, engineering, and land surveying services, to procure
these services on the basis of demonstrated competence and qualifications, to
negotiate contracts at fair and reasonable prices, and to authorize the Department of
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Professional Regulation to enforce the provisions of Section 65 of this Act." 30 ILCS
535/5 (West 2004).
The statute defines "State agency" as "any department, commission, council, board,
bureau, committee, institution, agency, university, government corporation, authority, or
other establishment or official of this State." 30 ILCS 535/15 (West 2004).
The statute sets forth the following selection procedures. State agencies may
establish procedures to prequalify firms or may use prequalification lists that other agencies
have compiled. 30 ILCS 535/20 (West 2004). When a State agency is considering a
project requiring architectural, engineering, or land surveying services, it must provide at
least 14 days' notice, published in a professional services bulletin or the official State
newspaper. 30 ILCS 535/25 (West 2004). "[T]aking into account qualifications," an agency
must evaluate the firms that have responded to the notice and any prequalified firms. 30
ILCS 535/30 (West 2004). The agency may consider, but is not limited to considering,
"ability of professional personnel, past record and experience, performance data on file,
willingness to meet time requirements, location, workload of the firm and any other
qualifications based factors as the State agency may determine in writing are applicable."
30 ILCS 535/30 (West 2004). The statute directs the agency to establish a committee to
select firms. 30 ILCS 535/30 (West 2004).
Relying on evaluations, discussions, and any presentations, the State agency must
select no less than three firms it deems to be qualified for the project and rank them in
order of qualifications. The agency shall then contact the firm ranked most preferred to
negotiate a contract at compensation that the agency determines in writing to be fair and
reasonable. 30 ILCS 535/35, 40(a) (West 2004). If the agency is unable to negotiate a
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satisfactory contract with the firm that is most preferred, then it shall terminate negotiations
with that firm and begin negotiations with the second most preferred firm on the list. 30
ILCS 535/40(b) (West 2004). The critical prohibition at issue here is that "[i]n no case shall
a State agency, prior to selecting a firm for negotiation under Section 40, seek formal or
informal submission of verbal or written estimates of costs or proposals in terms of dollars,
hours required, percentage of construction cost, or any other measure of compensation."
30 ILCS 535/30 (West 2004). The statute states that "a State agency may comply with
federal law and regulations including, but not limited to, Public Law 92--582 (Federal
Architect--Engineer Selection Law, Brooks Law, [40 U.S.C. '1101 et seq. (Supp. 20__)])
and take all necessary steps to adapt its rules, specifications, policies, and procedures
accordingly to remain eligible for federal aid." 30 ILCS 535/10 (West 2004). The statute
prohibits any person, corporation, or partnership licensed as an architect, engineer, or land
surveyor from engaging in any conduct that violates any of its provisions. 30 ILCS 535/65
(West 2004).
2. Local Government Selection Act
Enacted in 1987, the Local Government Selection Act states that it "shall be the
policy of the political subdivisions of the State of Illinois to negotiate and enter into contracts
for architectural, engineering and land surveying services on the basis of demonstrated
competence and qualifications for the type of services required and at fair and reasonable
compensation." 50 ILCS 510/1 (West 2004). The statute defines a "political subdivision"
as "any school district and any unit of local government of fewer than 3,000,000
inhabitants, except home rule units." 50 ILCS 510/3(5) (West 2004).
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The statute directs political subdivisions to allow firms to file annual statements of
qualifications and performance data. 50 ILCS 510/4 (West 2004). When a political
subdivision is considering a project, it must either mail notices to firms that have submitted
statements of qualifications or place an advertisement in a daily newspaper of general
circulation. 50 ILCS 510/4 (West 2004). The political subdivision must then evaluate the
interested firms by "taking into account qualifications, ability of professional personnel, past
record and experience, performance data on file, willingness to meet time and budget
requirements, location, workload of the firm and such other factors as the political
subdivision may determine in writing are applicable." 50 ILCS 510/5 (West 2004). The
political subdivision must select no less than three firms that it determines to be the most
qualified and rank them in order of their qualifications. 50 ILCS 510/6 (West 2004). It shall
contact the firm ranked most preferred and attempt to negotiate a contract at compensation
that the political subdivision determines in writing to be fair and reasonable. 50 ILCS 510/6,
7(1) (West 2004). If the political subdivision is unable to negotiate a satisfactory contract
with the firm that is most preferred, it shall terminate those negotiations and then begin
negotiations with the firm that is the next most preferred. 50 ILCS 510/7(2) (West 2004).
"[A] political subdivision of the State of Illinois may comply with federal law and regulations
and take all necessary steps to adapt its rules, specifications, policies and procedures
accordingly to remain eligible for federal aid." 50 ILCS 510/2 (West 2004).
3. Illinois Procurement Code
Plaintiff directs us to the Illinois Procurement Code (Procurement Code) (30 ILCS
500/1--1 et seq. (West 2004)), which contains a more detailed definition of "State agency."
The policy of the Procurement Code is "that the principles of competitive bidding and
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economical procurement practices shall be applicable to all purchases and contracts by or
for any State agency." 30 ILCS 500/1--5 (West 2004). The general rule is that all State
construction contracts be procured by competitive sealed bidding. 30 ILCS 500/30--15(a)
(West 2004). One exception is that all construction-related professional services must be
awarded in accordance with the Qualifications Based Selection Act. 30 ILCS 500/30--15(c)
The Procurement Code defines a "State agency" as:
"all boards, commissions, agencies, institutions, authorities, and bodies politic
and corporate of the State, created by or in accordance with the constitution or
statute, of the executive branch of State government and does include colleges,
universities, and institutions under the jurisdiction of the governing boards of the
University of Illinois, Southern Illinois University, Illinois State University, Eastern
Illinois University, Northern Illinois University, Western Illinois University, Chicago
State University, Governor State University, Northeastern Illinois University, and the
Board of Higher Education. *** 'State agency' does not include units of local
government, school districts, community colleges under the Public Community
College Act [(110 ILCS 805/1--1 et seq. (West 2004))], and the Illinois
Comprehensive Health Insurance Board." (Emphasis added.) 30 ILCS 500/1--
15.100 (West 2004).
4. State Agency v. Political Subdivision
Plaintiff urges us to hold that the language in the Procurement Code excluding
community colleges from the definition of "State agency" applies as well to the definition of
"State agency" under the Qualification Based Selection Act. Essentially, plaintiff is asking
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us to construe the two statutory schemes in pari materia. Under this doctrine of
construction, two legislative acts that address the same subject are considered with
reference to one another, so that they may be given harmonious effect. Land v. Board of
Education of the City of Chicago, 202 Ill. 2d 414, 422 (2002). A court invokes this doctrine,
however, only to resolve an issue of statutory ambiguity. People v. Aleman, 355 Ill. App. 3d
619, 626 (2005).
Here, there is no ambiguity to resolve. The Qualifications Based Selection Act
expressly defines "State agency." The legislature chose to use different language to define
the term in the Procurement Code. It is true that the Procurement Code refers to the
Qualifications Based Selection Act. Under the guise of statutory construction, however, a
court may not supply omissions, remedy defects, annex new provisions, add exceptions,
limitations, or conditions, or otherwise change the law so as to depart from the plain
meaning of the language employed in the statute. King v. First Capital Financial Services
Corp., 215 Ill. 2d 1, 26 (2005). What this means is that we will not simply import language
from the Procurement Code and add it to the definition of "State agency" found in the
Qualifications Based Selection Act. Instead, we will interpret the language as it appears.
Although we do not simply adopt the language of the Procurement Act, we conclude
that the College is not a "State agency" under the Qualifications Based Selection Act but
instead is a "political subdivision" subject to the Local Government Selection Act. Our
conclusion is based on a review of the Public Community College Act (Community College
Act) (110 ILCS 805/1--1 et seq. (West 2004)) and Luciano v. Waubonsee Community
College, 245 Ill. App. 3d 1077 (1993).
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The Community College Act created the Illinois Community College Board (State
Board). 110 ILCS 805/2--1 (West 2004). Any contiguous and compact territory with a
population of at least 60,000 may be organized into a community college district. 110 ILCS
805/3--1 (West 2004). A person desiring to organize a community college district must file
with the State Board a petition signed by at least 500 voters residing in the territory
described in the petition. 110 ILCS 805/3--1 (West 2004). The State Board conducts a
hearing on the petition, and, if it grants the petition, then the matter is put to a referendum.
110 ILCS 805/3--3, 3--4 (West 2004). The county or counties in which the proposed
district lies bear the cost of the referendum. 110 ILCS 805/3--4.1 (West 2004). If the
voters choose to establish a community college district, then an election is held to select
the members of the district's board. The board of a community college district is a body
politic and corporate. 110 ILCS 805/3--11 (West 2004). The district's revenues are
generated by local property taxes. 110 ILCS 805/3--20 through 20.10 (West 2004). A
community college district may borrow money for capital improvements, but it must submit
the issue to the voters of the district during a regular scheduled election. 110 ILCS 805/3A-
-1 (West 2004). Each district is empowered to levy taxes to meet debt obligations. 110
ILCS 805/3--33.4 (West 2004).
We find Luciano to be highly instructive regarding plaintiff's status. There, the
defendant, an employee of a community college, sought protection under the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.
Rev. Stat. 1989, ch. 85, par. 1--101 et seq. (now 745 ILCS 10/1--101 et seq. (West 2004))).
Luciano, 245 Ill. App. 3d at 1079. At the time in question, the Tort Immunity Act defined
"Local Public Entity" as "a county, township, municipality, municipal corporation, school
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district, school board, forest preserve district, park district, fire protection district, sanitary
district, and all other local governmental bodies. *** It does not include the State or any
office, officer, department, division, bureau, board, commission, university or similar agency
of the State." Ill. Rev. Stat. 1987, ch. 85, par. 1--206 (now 745 ILCS 10/1--206 (West
2004)). The court examined the nature of community college districts and held:
"Where a particular entity, such as Waubonsee, must petition another public
entity to hold public elections as a necessary antecedent to its creation, requires
public elections of its governing board of trustees and is financed by taxes and other
public funds, we are inexorably led to the conclusion that Waubonsee was an 'other
governmental body' within the definition of local public entity ***." Luciano, 245 Ill.
App. 3d at 1083.
The same reasoning leads us to conclude that a community college district is a "unit
of local government" and therefore a "political subdivision" subject to the Local Government
Selection Act. Where, as here, a governmental body is created by local referendum and
funded by local property taxes, and its officials are locally elected, it is a stretch to say that
the body is merely an agency, a department, or another arm of the State.
Defendants argue that the definition of "State agency" in the Qualifications Based
Selection Act is purposefully broad and stress that the definition contains no exceptions for
community colleges or units of local government. Defendants' argument would have some
appeal if the Local Government Selection Act did not exist. Because both acts regulate the
same subject matter, it would be difficult to see the need for the Local Government
Selection Act if the definition of "State agency" were as broad as defendants claim. See
Central Illinois Electrical Services, L.L.C. v. Slepian, 358 Ill. App. 3d 545, 549 (2005) (court
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should interpret a statute so that no term is rendered superfluous or meaningless).
Moreover, courts are to give a statute's words their plain and commonly understood
meanings. State Board of Elections v. Shelden, 354 Ill. App. 3d 506, 512 (2004). Adopting
defendants' construction would strain the commonly understood meanings of "State
agency" and "political subdivision."
5. Soliciting Fee Information Under the Local Government Selection Act
Defendants argue that, even if the College is a "political subdivision" subject to the
Local Government Selection Act, it nevertheless is prohibited from seeking fee information
in an initial request for proposals. According to defendants, because the Qualifications
Based Selection Act and the Local Government Selection Act have the same purpose, the
Local Government Selection Act should be interpreted as prohibiting political subdivisions
from soliciting fee information in initial requests for proposals.
The primary rule of statutory construction is to ascertain and give effect to the intent
of the legislature. In re Application of the County Treasurer, 214 Ill. 2d 253, 258 (2005).
The best evidence of legislative intent is the language of the statute, and courts must give
the language its plain and ordinary meaning. Crusius v. Illinois Gaming Board, 216 Ill. 2d
315, 328 (2005). The simple fact is that, unlike the Qualifications Based Selection Act, the
Local Government Selection Act contains no express prohibition against requesting fee
information before selecting a firm for negotiation. When the language of a statute is clear
and unambiguous, a court must give it effect as written, without reading into it exceptions,
limitations, or conditions that the legislature did not express. Land, 202 Ill. 2d at 426.
We are aware that, when the intent of the legislature is clearly expressed and the
objects and purposes of a statute are clearly set forth, the courts are not bound by the
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literal language of a particular clause of the statute that might defeat such clearly expressed
legislative intent. In re Application of the County Treasurer, 214 Ill. 2d at 259. Here, we do
not discern any such overriding intent. This is so because the language of each act's
section governing the evaluation procedure differs. Both sections contain very similar
language about the factors that governmental bodies should consider when selecting firms
for negotiation. The Qualifications Based Selection Act lists as one of the factors,
"willingness to meet time requirements." 30 ILCS 535/30 (West 2004). After listing the
factors, the Qualifications Based Selection Act states that the State agency shall consider
"any other qualifications based factors as the State agency may determine in writing are
applicable." (Emphasis added.) 30 ILCS 535/30 (West 2004).
The Local Government Selection Act lists as one of the factors for consideration,
"willingness to meet time and budget requirements." (Emphasis added.) 50 ILCS 510/5
(West 2004). Thus, the Local Government Selection Act expressly allows a political
subdivision to consider budgetary issues before selecting a firm for negotiation. Moreover,
the statute does not contain the "qualifications based factors" language found in the
Qualifications Based Selection Act. Instead, it states that, after considering the
enumerated factors, the political subdivision shall consider "such other factors as the
political subdivision may determine in writing are applicable." 50 ILCS 510/5 (West 2004).
These differences in language are significant and warrant a conclusion that, in the
Local Government Selection Act, the absence of a prohibition against seeking fee
information before selecting a firm for negotiation was not an oversight but likely was
intentional. We see no basis for creating such a prohibition through statutory interpretation.
If the legislature intended to prohibit the solicitation of cost estimates during the initial stage
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of the selection process, it could have amended the Local Government Selection Act at the
time that it enacted the Qualifications Based Selection Act.
Defendants and amici do not cite any decision interpreting another jurisdiction's
statute governing the procurement of design professionals' services as containing an
implied prohibition against seeking fee information before selecting a qualified firm for
negotiation. The most persuasive authority apparently available to defendants and amici
are opinions of the Attorneys General of Colorado and Montana. These opinions
interpreted statutes with language similar to the Local Government Selection Act. Most
notably, the statutes did not expressly prohibit a state agency from soliciting cost
information before selecting a firm for negotiation. The opinions concluded that a state
agency may not request cost information or consider such information before selecting the
most highly qualified architect, engineer, or land surveyor for a project. 1992 Colo. Att'y
Gen. Op. No. 7; 1992 Mont. Att'y Gen. Op. No. 45. They relied heavily on the legislative
history of the Brooks Law and the American Bar Association Model Procurement Code for
State and Local Governments (1979) (ABA Model Code).
The Brooks Law contains no prohibition like that found in section 30 of the
Qualifications Based Selection Act. See 40 U.S.C. ''1103, 1104 (Supp. 20__). However,
the legislative history states that "[u]nder no circumstances should the criteria developed by
an agency head relating to the ranking of architects and engineers on the basis of their
professional qualifications include or relate to the fee to be paid to the firm, either directly or
indirectly." S. Rep. No. 92--1219, 92d Cong., 2d Sess. 8, reprinted in 1972 U.S.C.C.A.N.
4767, 4774. The ABA Model Code is similar to the Local Government Selection Act and
likewise contains no express prohibition like that found in section 30 of the Qualifications
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Based Selection Act. The commentary to the ABA Model Code states that "[t]he principal
difference between the recommended procedure for architect-engineer and land surveyor
selection and the procedures used in most other competitive source selections is the point
at which price is considered." ABA Model Code '5--501, Committee Commentary at 41.
Defendants' and amici's reliance on these sources does not alter our conclusion.
Only if a statute is ambiguous may a court consider extrinsic aids for construction, such as
legislative history, to determine legislative intent. In the absence of an ambiguity, the court
must rely on the plain and ordinary meaning of the words the legislature chose. Land, 202
Ill. 2d at 426. Also, there is nothing in the opinions of the Attorneys General of Colorado
and Montana indicating that the relevant statutes presented the language dichotomy that is
present in the Qualifications Based Selection Act and the Local Government Selection Act.
We stress that, although a political subdivision is not prohibited from requesting fee
information before selecting a firm for negotiation, the selection ultimately must be based
on qualifications. The lack of an express prohibition against considering fee information
before selecting the most qualified firms should not detract from the overall purpose and
requirements of the Local Government Selection Act. For example, although the College
has requested fee information, its selection criteria are strictly based on qualifications.
Although one might wonder why the College has asked for fee information if it is not
relevant to the selection of the most qualified firm, it appropriately has refrained from
formally injecting any elements of competitive bidding into the selection process. We
simply hold that the College's requests for proposals do not violate the Local Government
Selection Act.
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We are sympathetic to defendants' and amici's concerns. However, given the
language of the relevant statutes, we cannot create a legislative prohibition where none
exists. Defendants' and amici's pleas are more appropriately directed toward the
legislature.
IV. CONCLUSION
We hold that (1) the complaint sufficiently alleges plaintiff's standing to seek a
declaratory judgment; (2) the College is a "political subdivision" and therefore subject to the
Local Government Selection Act; and (3) the Local Government Selection Act does not
prohibit the College from soliciting fee or cost information before selecting the most
qualified firm for negotiation.
Accordingly, we reverse the judgment of the circuit court of Du Page County and
remand the cause.
Reversed and remanded.
BYRNE and KAPALA, JJ., concur.
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