Responsible Bidding
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:

1. A thorough legal opinion and case law analysis provided by a reputable outside law firm, stating that RBO’s, as presented on this website, are legal and in fact wise to adopt.
2. A letter from the Illinois Attorney General’s office stating that they agree with the analysis of the above mentioned legal opinion.
3. Illinois Public Act 93-0642 - the State of Illinois’ own Responsible Bidder Ordinance.
4. The dozens of existing RBO’s that have been adopted and are in use today.

Legal Opinion & Relevant Case Law

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” we believe that the courts would defer to a given municipality’s definition and its discretion to award a contract thereunder.”

Illinois Attorney General

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.”

Illinois Public Act 93-0642

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.

Existing RBO's

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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