My Baps Construction Corp. v. City of Chicago
87 N.E.3d 987
Ill. App. Ct.2017Background
- The City awarded My Baps two large "Green Alley" construction contracts (south and north areas) with unit-price bid schedules including line items 2 (earth excavation), 3 (special excavation), and 49 (alley pavement removal and subgrade preparation).
- Disputes arose over whether certain pavement removal and related work should have been paid under line item 49 instead of items 2 or 3; My Baps sought additional compensation after payments and work had occurred.
- Contract §XX required (1) written notice to the resident engineer/project manager within 14 days of a claim, (2) escalation to the CDOT commissioner, (3) then a request to the City’s Chief Procurement Officer (CPO) within 10 days of the commissioner’s response, and (4) final judicial review by writ of certiorari within 35 days of the CPO decision; DOPS regulations also required a CPO request within 120 days after contract expiration.
- My Baps submitted a claim to the CDOT commissioner (denied Oct. 2011) and then requested CPO dispute resolution on Oct. 28, 2011—300 days after contract expiration (Dec. 31, 2010); CPO Rhee denied the claims as untimely and on the merits (Feb. 27, 2012).
- My Baps filed a circuit-court complaint seeking (Count I) certiorari review of the CPO decision and (Counts II–III) breach-of-contract damages; the court dismissed Counts II–III (2-615) and quashed the writ after affirming the CPO. My Baps appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contracts preclude an ordinary breach-of-contract suit and limit remedy to certiorari review | §XX and DOPS nonwaiver language preserve contract remedies; My Baps did not waive suit | §XX makes writ of certiorari the exclusive judicial remedy; parties agreed to administrative CPO process and DOPS rules; CPO authority is implied under Purchasing Act | Dismissal of breach counts proper; parties knowingly limited judicial review to certiorari and CPO has implied authority to adjudicate |
| Whether the City violated the bankruptcy automatic stay by proceeding with administrative resolution after My Baps filed bankruptcy | Administrative proceeding violated automatic stay (petition filed Sept. 21, 2011) | The dispute resolution was initiated by My Baps (Oct. 28, 2011), so the stay does not bar debtor-initiated proceedings | No stay violation: debtor invoked the process, so administrative action was not continuation against the debtor |
| Whether the circuit court erred in accepting the administrative record and denying supplementation | Civil Practice Act requires an answer; My Baps entitled to supplement evidence and a full answer | Certiorari review is confined to the administrative record; Civil Practice Act pleading rules do not apply to administrative review | Denial of supplementation affirmed; review limited to CPO administrative record and certiorari procedures control |
| Whether CPO Rhee’s process/decision violated due process or was against manifest weight | Denied opportunity for hearing/cross-examination; CPO biased; decision on timeliness and merits erroneous | My Baps waived procedural objections by contract and by failing to request a CPO meeting; timeliness and merits supported by records and affidavits | No due-process violation (forfeiture and contractual consent); CPO’s timeliness and merits rulings not clearly erroneous; decision affirmed |
Key Cases Cited
- O'Grady v. Cook County Sheriff's Merit Board, 260 Ill. App. 3d 529 (Ill. App. Ct. 1994) (agency authority must be grounded in statute but may be implied to effectuate duties)
- Chicago Food Management, Inc. v. City of Chicago, 163 Ill. App. 3d 638 (Ill. App. Ct. 1987) (describing purchasing agent duties under municipal Purchasing Act)
- Des Plaines Currency Exchange, Inc. v. Knight, 29 Ill. 2d 244 (Ill. 1963) (Civil Practice Act pleading rules do not apply to administrative-review proceedings)
- E & E Hauling, Inc. v. Pollution Control Board, 107 Ill. 2d 33 (Ill. 1985) (claims of administrative bias must be asserted promptly after discovery)
- AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380 (Ill. 2001) (standard for clearly erroneous review of agency findings)
- Thompson v. Gordon, 241 Ill. 2d 428 (Ill. 2011) (contract interpretation aims to effectuate parties' intent and give meaning to all provisions)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due process requires procedures balanced by interests and potential value of additional safeguards)