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Understandably, one question that often comes up in regards to
Responsible Bidder Ordinances is “are they legal?” After all,
an RBO does give a public body the flexibility to potentially
pass on the lowest bid on a particular job - something that can
be a tricky legal endeavor if there is no comprehensive RBO in
place.
Our research shows that they are indeed legal, and in fact
often recommended by the legal counsel of public bodies. Supporting
evidence of this legality consists of:
Hogan Marren, Ltd. was presented with a sample, comprehensive
Responsible Bidder Ordinance. They were asked to provide an objective
opinion on the legality of a public body adopting such an ordinance into their procurement codes and utilizing it to screen out bidders that do
not meet the criteria and/or to potentially use it as a basis to award
a contract to someone other than the lowest bidder.
Their response was a seven page opinion letter that explores, in
detail, Illinois case law relevant to a public body being legally
allowed to define the term “responsible” and use that definition
as the basis for not accepting the lowest bid on construction services.
Click here to download
the full opinion, but in short, it found
that RBO’s have been found legal to adopt and use in the manner
set forth on this website. Here is a look at the conclusion of
the opinion:
“The Illinois Supreme Court has consistently allowed
for the inclusion of many factors into consideration of which
bidder is the “lowest responsible bidder.” In addition to financial
responsibility and ability to perform, the court has also allowed
agents and agencies to include social responsibility and reasonable
benefits to the given municipality. Most importantly, the court
adheres to the deference of the purchasing agent and the factors
of responsibility as delineated by the statute in question.
Therefore, in the absence of
arbitrariness and fraud, any factor used in an ordinance and subsequent bid requirements that is based upon authority granted by the Illinois Purchasing
Act would not conflict with jurisprudential precedent regarding
“responsible bidders.” Therefore, municipalities requesting bids
under that Act, would be wise to adopt a “responsible bidder” ordinance
containing a reasonable definition of “responsible”...as we believe
that the courts would defer to a given municipality’s definition
and its discretion to award a contract thereunder.”
On the heels of the analysis provided by Hogan Marren,
the opinion of the Illinois Attorney General was sought. While
the AG’s office could not provide an official opinion because
they are authorized to only advise State officers and State’s
Attorney’s, they did provide the following statement:
“We have
reviewed the opinion of counsel prepared by Mr. Edward M. Hogan of Hogan Marren, Ltd., Attorneys at Law, and we agree with his analysis. We are aware of no statute
or legal principle that would preclude units of local government
and school districts, in the exercise of their statutory authority,
from adopting, by ordinance or other appropriate procedure,
responsible bidder policies such as your organization proposes.”
This
bill that took effect June 1, 2004 amends the
Illinois procurement code to include language that defines
a responsible bidder in the same way that is outlined in this
booklet. It includes all the same general criteria, including
the apprenticeship and training clause, and applies to any
construction project bid under the authority of the Illinois
Capital Development Board.
This is pretty strong evidence that
the RBO language is perfectly legal to adopt and utilize.
The same language was passed into law by the Illinois General
Assembly and is currently part of the CDB’s procurement code.
We know of well
over 60 comprehensive responsible bidder ordinances that are
currently in use in the procurement codes of various taxing
bodies throughout the state of Illinois.
That’s only the ones
we know about and consider to be comprehensive. There are
likely dozens more we simply haven’t discovered. These include
counties, cities, townships, community colleges, park districts,
school districts, and even a county animal shelter foundation!
All of which have closely considered not only the benefits,
but the legality of utilizing an RBO and went ahead with adopting
one.
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