Brendan and Mary Walsh v. State of Illinois

ORDER

STEFFEN, J.

THIS MATTER coming to be heard on the Respondent’s Motion to Dismiss the claim herein, and it appearing to the Court that Claimant has received due notice and the Court being fully advised in the premises:

Claimant, Brendan Walsh and Mary Walsh d/b/a Walsh Recreation (hereinafter “WALSH”), seeks compensation for alleged bid-ridding by the Illinois Department of Natural Resources (hereinafter “IDNR”) pursuant to Section 5/33E-3 of the Criminal Code of 1961 (hereinafter “Criminal Code”), 720 ILCS 5/33E-3; jurisdiction before this Court is asserted pursuant to Section 505/8(a) of the Court of Claims Act, 705 ILCS 505/8(a).

In 1989 - 1990, Walsh began operating a concession facility within Rock Cut State Park in Loves Park, Illinois. In 2001, IDNR did extend a “Notice to Bidders and Invitation to Bid for the Operation of a Concession, located in Rock Cut State Park Winnebago County, Illinois” effective until April 23, 2001.

In May of 2001, WALSH did submit its bid to continue leasing and operating said concession. WALSH was notified shortly thereafter that it was not the successful bidder, and the lease was awarded to an alternate bidder.

WALSH claims as damages past expenses and mortgage costs associated with its operation of the Rock Cut State Park concession, loss of future income and future pension and healthcare benefits, injunctive relief, and court costs and fees.

WALSH asserts jurisdiction before this Court pursuant to Section 505/8(a) of the Court of Claims Act which confers jurisdiction to this Court over “[a]ll claims against the State founded upon any law of the State of Illinois.” 705 ILCS 505/8(a). WALSH attempts to maintain a claim against the State founded upon Section 5/33E-3 of the Criminal Code, which makes collusive bidding to manipulate the award of government contracts to a particular bidder a criminal violation. 720 ILCS 5/33E-3. However, no private right of action can [*240] be grounded upon Section 5/33E-3. Therefore, WALSH cannot assert jurisdiction over this matter by virtue of Section 505/8(a).

The Criminal Code specifically “does not bar, suspend, or otherwise affect any right or …remedy…in a civil action, for conduct the Code makes punishable; and the civil injury is not merged in the offense.” 720 ILCS 5/1-4. Hence, by explicitly preserving complementary civil causes of actions and stating a civil injury is separate from the criminal offense, the Criminal Code is clear that no private causes of action are contained therein.

The Criminal Code’s limiting language aside, in order to proceed in a claim under the statute, the Court would have to recognize an implied statutory tort, that is, “a private civil action implied from a statute that does not expressly create a private cause of action.” Farrell et al. v. State 52. Ill. Ct. Cl. 275 (1997). In Farrell, this Court adopted the four factors first articulated in Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill. 2d 378, 432 N.E.2d 849 (1982), necessary to establish an implied private cause of action: (1) the plaintiff is a member of the class for whose benefit the statute was enacted, (2) the private right of action is consistent with the statute in question, (3) the injury to the plaintiff is of the type the statute was enacted to prevent, and (4) an implied private right of action is necessary to remedy a violation of the act. See also, Rogers v. St. Mary’s Hospital of Decatur, 149 Ill. 2d 302, 597 N.E.2d 616 (1992). This Court has held that an implied right of action can only be found based upon “necessity,” and is done so reluctantly. Farrell, 52 Ill. Ct. Cl. 275. According to the Criminal Code itself and the Farrell factors, no implied private cause of action can be grounded upon Section 5/33E-3. Therefore, WALSH cannot assert jurisdiction before this Court pursuant to Section 505/8(a) and WALSH’s claim must be dismissed for want of jurisdiction.

Though not plead as a jurisdictional basis by WALSH, neither is jurisdiction proper pursuant to Section 505/8(b) of the Court of Claims Act, which grants this Court jurisdiction over “[a]claims against the State founded upon contract entered into with the State of Illinois.” 705 ILCS 505/8(b). This Court has already addressed a similar situation concerning a claim brought by an unsuccessful bidder in Ace Coffee Bar, Inc. v. The University of Illinois, 51 Ill. Ct. Cl. 395, 1999 WL 33246477 (1999), and determined that such a claim is not encompassed within Section 505/8(b).

Assuming, arguendo, this Court can entertain WALSH’s claim under any section of the Court of Claims Act conferring jurisdiction, and WALSH does in fact state a viable cause of action, WALSH’s claim must be dismissed for failure to exhaust alternate remedies per the Court of Claims Act and administrative rules.

[*241] According to standard procurement procedures under the Administrative Code:

An actual or prospective bidder, offeror, or vender that may be

aggrieved in connection with a procurement may file a protest on any

phase of solicitation or award, including but not limited to

specifications preparation, bid solicitation, or award.

44 Ill. Admin. Code. 1.5550(a). “Protests shall be made in writing to the Procurement Officer” of the agency initiating the proposal. 44 Ill. Admin. Code 1.5550(c). WALSH admits in paragraph 53 of his complaint that [t]his claim and all occurrences within have not been previously presented to any person, firm, court or administrative tribunal other than the State of Illinois.” In addition, page 2 of Respondent’s Departmental Report filed contemporaneously with its Answer on January 17, 2006, state “Claimant’s claim has never been presented to any State department or officer and has not been the subject of administrative proceedings. Claimant did not file a protest of the contract award pursuant to the Procurement Code.” Accordingly, WALSH’s claim must be dismissed for failure to exhaust available administrative remedies.

WALSH seeks as damages future lost profits and benefits as result of its failure to have been awarded the contract upon which it bid. However, an unsuccessful bidder on a public contract may not seek to recover lost profits. Court Street Steak House v. County of Tazewell, 163 Ill.2d 159, 170 (1994). Like the plaintiff in Court Street, here WALSH seeks to recover damages incurred as a result of its failure to be awarded the contract it sought. WALSH is not entitled to lost profits it might have earned had WALSH been a successful bidder on the contract. Nor has WALSH provided a bill of particulars which would detail precisely what other damages it seeks - a pleading requirement of this forum. 74 Ill.Adm. Code 790.50(a)(11). WALSH is not entitled to lost profits and has failed to provide a bill of particulars detailing any other item of damage and the amount claimed. Accordingly, its claim for lost profits must be dismissed.

WALSH seeks injunctive relief from this Court in connection with the allegedly unfair bidding process which resulted in the Rock Cut State Park concession lease to be awarded to a competing bidder. This Court is without the authority to grant WALSH’s request for injunctive relief. Garimella v. The Board of Trustees of the University of Illinois, 50 Ill. Ct. Cl. 350, 1996 WL 1743235 (1996). In Garimella, this Court undertook the inquiry of whether it was empowered to issue injunctions in connection with a breach of contract claim. This Court concluded that without a specific statutory provision which empowered this Court to issue injunctions, it was without jurisdiction to do so. Id. In a similar unsuccessful bidder case where the claimant requested [*242] injunctive relief concerning the bidding process, this Court, citing to Garimella, found that this Court lacks authority to issue injunctive relief in such a case. Ace Coffee Bar, Inc. v. The University of Illinois, 51 Ill. Ct. Cl. 395, 1999 WL 33246477 (1999). Therefore, WALSH’S request for injunctive relief must be dismissed.

IT IS HEREBY ORDERED that the motion of the State of Illinois is granted and the claim herein is dismissed with prejudice for want of jurisdiction and for failure to exhaust administrative remedies.