O'Hare Express, Inc. v. City of Chicago

601 N.E.2d 846, 235 Ill. App. 3d 202, 176 Ill. Dec. 148
CourtAppellate Court of Illinois
DecidedOctober 19, 1992
Docket1-90-1461, 1-90-2300 cons.
StatusPublished
Cited by11 cases

This text of 601 N.E.2d 846 (O'Hare Express, Inc. v. City of Chicago) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Hare Express, Inc. v. City of Chicago, 601 N.E.2d 846, 235 Ill. App. 3d 202, 176 Ill. Dec. 148 (Ill. Ct. App. 1992).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs O’Hare Express, Inc., and O’Hare Express/Jimray Corp. (O’Hare Express) appeal from the April 16, 1990, finding of the trial court that the City of Chicago (City) was not required to use a competitive bidding process pursuant to section 8 — 10—3 of the Hlinois Municipal purchasing act for cities of 500,000 or more population (purchasing act) (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3) to procure an airport bus shuttle service. Plaintiffs further appeal from the March 30, 1990, and July 26, 1990, orders of the trial court dismissing count II of their complaint and amended complaint, respectively, for failure to state a cause of action. For the following reasons, we reverse and remand this matter to the trial court for further proceedings. The following facts are relevant to this appeal.

In 1984, the City solicited sealed bids for a bus transportation service contract at the O’Hare International Airport (O’Hare) Interim Terminal No. 4 (Terminal No. 4). The City awarded a five-year contract to O’Hare Express. The contract called for O’Hare Express to provide a shuttle bus service for passengers and crew between Terminal No. 4 and the hardstand area where airplanes arrived at and departed from O’Hare. The expiration date of the contract was March 16,1990.

In August 1989, prior to the conclusion of O’Hare Express’ contract, the City determined that the new terminal would not be completed until 1993, and that bus service would be necessary for three additional years. At that time, the City Department of Purchasing chose to relet the O’Hare bus service contract as a “cost-reimbursement contract,” using a procurement process called a request for proposal (RFP) instead of inviting submission of sealed bids. In a RFP, the contractor develops a proposal describing the services it will provide and what the costs will be, and the public purchasing agent selects the contractor based on a consideration of price and the product or service proposed. Under a cost-reimbursement contract, the contractor is reimbursed for costs on a monthly rather than annual basis.

The City advertised for submission of proposals and received three, including offers from O’Hare Express and codefendant Keeshin Charter Services (Keeshin). The record indicates that O’Hare Express’ proposed cost for one year was $2,723,087, while Keeshin’s proposed cost for one year was $3,785,481.

On February 22, 1990, plaintiffs filed a complaint in chancery seeking a temporary restraining order (TRO) and permanent injunction, to prevent the City from entering into a contract for bus services with Keeshin. In count I, plaintiffs alleged that the City was required by the purchasing act (Ill. Rev. Stat. 1989, ch. 24, par. 8 — 10—3) to engage in competitive bidding for the continuation of the bus service contract, and that the RFP solicitation was contrary to the law and not in the interest of the taxpaying public. In count II, plaintiffs alleged that the City’s request for plaintiffs to participate in the transition to Keeshin by making the buses and personnel available for inspection and training of Keeshin’s employees required plaintiffs to work past the contract expiration and thus constituted breach of contract. In count III, plaintiffs alleged that the City intentionally interfered with the union contracts of O’Hare Express drivers by coercing them to deal with a nonunion contractor. In response, the City filed a motion to dismiss plaintiffs’ complaint.

The trial court conducted a hearing on February 23, 1990, denied both plaintiffs’ motion for TRO and the City’s motion to dismiss, and set the matter for trial on count I of plaintiffs’ complaint. Plaintiffs voluntarily withdrew counts II and III of their complaint without prejudice to reinstate.

On March 9, 1990, plaintiffs filed an amended complaint in chancery for declaratory and injunctive relief. In count II, plaintiffs alleged that the following actions of the City showed favoritism to Keeshin: (1) the contract between O’Hare Express and the City did not contain any language relating to a transition at the end of the contractual period; (2) on February 2, 1990, O’Hare Express received a letter from the City stating that the City had selected another firm for services, but that the O’Hare Express proposal had not been rejected. On the afternoon of February 2, O’Hare Express received a phone call from the Department of Aviation requesting that O’Hare Express representatives meet with the Department of Aviation to discuss transition to a new contractor; (3) a letter from Mary Rose Loney, the first deputy commissioner of aviation, dated February 7, set forth the procedures which would be followed during the transition period; (4) on February 15, the Department of Aviation called O’Hare Express and demanded that O’Hare Express post a notice at the O’Hare Express time clock that applications for employment would be taken by the new contractor. On or about February 19, Keeshin advertised in the Chicago Sun-Times for drivers because they did not have enough qualified drivers for services at Terminal No. 4. On February 21, Cecilia Ice-Gibson, the O’Hare Terminal manager, told Danny Cargin, a representative of O’Hare Express, that Keeshin was having trouble finding drivers and asked him to pass out Keeshin’s number to O’Hare Express employees; and (5) the City attempted to require O’Hare Express to make buses and personnel available for the training of Keeshin’s employees, to arrange access for auditing of inventory, and to require O’Hare Express to work past contract expiration.

Plaintiffs further alleged in count II that the City arbitrarily utilized an improper selection process and exhibited improper bias toward Keeshin, noting that: (1) Keeshin had no hardstand apron experience; (2) Keeshin’s bid was $1,050,000 higher than O’Hare Express’ bid; (3) Keeshin did not have the required participation of women or minority business enterprises; and (4) Keeshin is a nonunion employer. Plaintiffs also alleged that the City showed an improper bias toward Keeshin and that such bias grew out of questions regarding O’Hare Express’ service history. Plaintiffs filed a motion for temporary restraining order based upon the allegations of count II.

On March 15, the trial court conducted a hearing and denied plaintiffs’ motion, and both the City and Keeshin filed a motion to dismiss count II of plaintiffs’ amended complaint under section 2 — 615 of the Code of Civil Procedure for failure to state a cause of action. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) On March 30, the trial court granted defendants’ motion to dismiss and gave plaintiffs 28 days to replead count II.

Trial on count I of plaintiffs’ amended complaint commenced on April 10. At trial, Francis Ferrone, co-owner of O’Hare Express, testified that the nature of the 1984 contract was to run a shuttle bus service along a 1.210-mile route between Terminal No. 4 and the hardstand where the airplanes were located. He stated that the City specified the type and number of buses and provided schedules of flight arrivals and departures.

Berry Morris, assistant manager of Terminal No. 4 and manager of vehicle maintenance, stated that the bus route would be the same for anybody submitting a proposal under the RFP.

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Bluebook (online)
601 N.E.2d 846, 235 Ill. App. 3d 202, 176 Ill. Dec. 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohare-express-inc-v-city-of-chicago-illappct-1992.