Judicial Rulings

Illinois Supreme Court

Affirmative action bidding formulas are legal

BIDDING procedures that result in the awarding of contracts to other than the lowest bidders because the procedures are designed to promote affirmative action are legal under a July 11 ruling by the Illinois Supreme Court.

In the case, S.N. Nielsen Company v. The Public Building Commission of Chicago, Nielsen, a general contractor, sought a determination that his firm was entitled to the contract for construction of the New Loop and City Wide College to be located in downtown Chicago. The Chicago Public Building Commission had awarded the contract to the Del. E. Webb Corporation, a competitor, even though Nielsen's original bid was lower.

At issue was the commission's so-called "canvassing formula," which gives a contractor credit for the percentage of hours to be worked by minority workers and lowers the contractor's original bid accordingly. The result is the so-called "award criteria figure," or adjusted bid. The commission uses the formula, however, only to determine who has the lowest adjusted bid; the work is still done for the amount the contractor originally bid. In this case, Nielsen's original bid, $19.130 million, was the lowest of seven bids, with Webb's $19.320 million bid the second lowest. After application of the formula, however, Webb received more credit for minority workers than did Nielsen, and Webb's adjusted bid of $18,547 million was the lowest, with Nielsen's adjusted bid of $18,565 million the second lowest.

Initially, the Cook County Circuit Court ruled the commission's formula illegal and entered a 10-day restraining order preventing Webb from beginning construction of the college. Later, however, the court dissolved the restraining order and denied Nielsen's request for declaratory and injunctive relief and a writ of mandamus.

Nielsen appealed directly to the high court, arguing the commission's formula was illegal on two counts: (1) the Illinois Fair Employment Practices Act, on which the commission bases its authority to incorporate the formula into its bidding procedure, bans discrimination, but does not mandate affirmative action; (2) use of the formula results in the awarding of contracts to others than the lowest bidders, which violates standard public bidding procedure.

The high court ruled the commission's formula is legal, reversing the lower court on that question, and accordingly, affirming the lower court's refusal to reinstate the restraining order against Webb and to award relief for Nielsen.

On the affirmative action question, Justice Thomas E. Kluczynski called the meaning of the state anti-discrimination law "plain." He quoted another opinion: "The obligation to take affirmative action

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imports more than the negative obligation not to discriminate" (Southern Illinois Builders Association v. Ogilvie (7th Cir. 1972), 471 F.2d 680, 684).

On the lowest bidder question, Kluczynski explained: "Antidiscrimination statutes such as section 4 of the Fair Employment Practices Act indicate the legislature's intention that, in public contracting, the social responsibility of the contractor should also be a concern. Financial responsibility and the ability to perform the contract are therefore not the only relevant factors, and the fact that a contractor submits the lowest bid will not automatically require that the contract be awarded to that contractor."

Quoting McQuillan's treatise on municipal corporations, Kluczynski said that bidding procedures which incorporate such affirmative action formulas may well result in the increase in cost of public contracts. But, he said, a public policy of affirmative action is a far less costly way of enforcing equal opportunity laws than the alternative: public prosecution of discriminators.

The Judicial Circuit

'ERA bribery case'

HEARINGS to reconsider the split, guilty/innocent verdict in the so-called "ERA bribery case" were scheduled for October 10 in Springfield. If defense motions requesting a wided verdict and a new trial were denied, sentencing of Wanda Brandstetter was scheduled for November 7. The 55-year-old Chicago businesswoman and National Organization for Women (NOW) volunteer was convicted August 22 in Sangamon County Circuit Court of bribing a freshman Illinois General Assembly member for a pro-ERA vote.

The controversial "ERA bribery case" has drawn national attention as the first known criminal proceeding to stem from the eight-year-old effort to ratify the ERA.

Following a week-long trial before Judge Jeanne C. Scott, Sangamon County's first woman trial judge, the eight-man, four-woman jury deliberated seven hours. They found Wanda Brandstetter guilty of bribing Rep. Nord L. Swanstrom (R., Pecatonica) by offering him $1,000 in exchange for a pro-ERA vote on May 14 in the Illinois House. The jury, which was described as four pro-ERA and eight undecided, also found Brandstetter innocent of the lesser charge of solicitation of a public official to commit misconduct.

The split, guilty/innocent verdict prompted defense attorneys Sheila and John Murphy to charge Sangamon County States Attorney Bill Roberts with prosecutorial misconduct, arguing that Roberts overstepped his bounds by telling the jury that the prosecution would not seek a prison term for Brandstetter. Roberts later affirmed that the prosecution would seek a fine rather a prison term. Maximum penalty for bribery of a public official is seven years and/or $10,000.

Ironically, the ERA was not called for a vote May 14 after all; legislative sponsors discovered they were two votes short of the 107, or three-fifths majority, required under House rules. And the ERA fell a full five votes short when it was finally called June 25, in a stunning setback for NOW, which had predicted that if the ERA failed in Illiois in 1980, it would never pass "in this century" in the three states needed for ratification. NOW, the leader of the pro-ERA lobby nationwide, had mounted the most intensive campaign yet in Illinois' history of considering the ERA.

Most observers say Brandstetter's indictment contributed to the ERA's defeat in June and expect her conviction to cloud chances the ERA will be reconsidered when the Illinois General Assembly reconvenes for its annual fall veto session in November. Further attempts to ratify in Illinois in the near future may hinge on the final outcome of the bribery trial.

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