                             No. 2--05--0079
______________________________________________________________________
                               ________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
                               ________

THE BOARD OF TRUSTEES OF                   ) Appeal from the Circuit Court
COMMUNITY COLLEGE DISTRICT No.             ) of Du Page County.
502, COUNTY OF DU PAGE,                    )
                                           )
      Plaintiff-Appellant,                 )
                                           )
v.                                         ) No. 04--CH--349
                                           )
THE DEPARTMENT OF PROFESSIONAL )
REGULATION, n/k/a The Department of        )
Financial and Professional Regulation, and )
FERNANDO E. GRILLO, Director of the        )
Department of Professional Regulation, n/k/a )
The Department of Financial and Professional )
Regulation,                                ) Honorable
                                           ) Edward R. Duncan, Jr.,
      Defendants-Appellees.                ) Judge, Presiding.
______________________________________________________________________
                                       ________

       JUSTICE CALLUM delivered the opinion of the court:

                                    I. INTRODUCTION

       Plaintiff, the Board of Trustees of Community College District No. 502, County of Du

Page, commenced this action seeking a declaration that the College of Du Page (College)

is a "political subdivision" subject to the Local Government Professional Services Selection

Act (Local Government Selection Act) (50 ILCS 510/0.01 et seq. (West 2004)), which does

not expressly prohibit political subdivisions from issuing initial requests for proposals that
No. 2--05--0079


ask interested architects, engineers, and land surveyors for information about their fees.

Defendants, the Department of Professional Regulation, n/k/a the Department of Financial

and Professional Regulation (Department), and Department Director Fernando Grillo,

moved to dismiss on the grounds that (1) regardless of whether the College is a "political

subdivision" under the Local Government Selection Act or a "state agency" subject to the

Architectural, Engineering, and Land Surveying Qualifications Based Selection Act

(Qualifications Based Selection Act) (30 ILCS 535/1 et seq. (West 2004)), it may not

request fee information in its initial request for proposals; and (2) there was no standing or

an actual controversy. The trial court accepted both grounds and dismissed the complaint.

       We hold that (1) the complaint sufficiently alleges standing and an actual

controversy; (2) the College is a "political subdivision" and therefore subject to the Local

Government Selection Act; and (3) the Local Government Selection Act does not prohibit

the College from soliciting fee or cost information before selecting the most qualified firm for

negotiation. Accordingly, we reverse and remand.

                                     II. BACKGROUND

       Filed on March 3, 2004, plaintiff's complaint alleged the following. On November 5,

2002, the College received the authority via a public referendum to issue $183 million in

construction bonds. The College began the process of engaging design professionals to

assist in various construction projects to be completed over the next several years. In

2003, the College published requests for proposals for architectural, design management,

and construction management services.

       In a section entitled "format of proposals," the requests instructed that the proposals

"[s]tate the price to the College on a fixed fee, not-to-exceed basis for each Phase of the


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project. Also, provide a cost breakdown of each element of each phase of the project."

Another request for proposals stated that the "[f]ee proposal shall be a lump sum fixed fee

for complete A/E services." It required a fixed-fee proposal, a breakdown of the fee by

phase, an hourly rate for all personnel categories, and an estimation and breakdown of

reimbursable expenses. The request instructed that the fee proposal should be submitted

along with the other requested materials. In a separate section entitled "selection criteria,"

the requests for proposals listed the following criteria: the firm's overall professional

qualifications; relevant experience in designing similar educational or other institutional

facilities; knowledge of and experience with code requirements for educational facilities in

Illinois; performance record on public contracts; resources appropriate for the scope of

work and the project schedule; proposed staffing plan and team organization; commitment

to the College's schedule; financial responsibility; quality of work as demonstrated by recent

construction documents; understanding of specific issues; and design approach to the

project.

       On May 6, 2003, the College received a letter from Eileen McGuiness, one of the

Department's attorneys, stating:

              "I am in receipt of a Request for Proposal issued by [the College] ***. I am

       requesting that you review *** the Local [Government] Professional Services

       Selection Act ***.

              The selection process for Architects and Professional Engineers, Structural

       Engineers, and/or Land Surveyors differs from the bid process for construction

       companies. The Department enforces against its licensees violations of the [Local

       Government Selection Act]. The legislature has clearly articulated its intent to


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      supplant competition for local units of government *** in regard to the services of

      Architects, Engineers and land surveyors. *** We would prefer to not have any

      violation to prosecute against an Architect or Professional Design Firm. I am

      seeking your assistance toward this end."

      On June 18, 2003, the College received a letter from the executive vice-president of

the Illinois Council of the American Institute of Architects. The letter expressed concern

about the College's request for fee information and asserted that, under the Local

Government Selection Act:

             "Qualifications, not fees, are to be used as the determining factor in the initial

      selection process. The purpose of the [Local Government Selection Act] is to

      protect the owner and public interest by ensuring the selection of a firm qualified to

      do the work, as opposed to merely a low bidder.

                                            ***

             A fee should not be requested to be included in the proposal, even as only

      one of many proposal requirements. Once a fee is included, there is a strong

      tendency for this fee to have undue and often decisive weight in the selection

      decision."

      On February 13, 2004, McGuiness sent the College a letter requesting a list of the

architectural or engineering firms to which the College had sent requests for proposals

regarding a certain project. On February 19, 2004, the Department issued the College a

subpoena duces tecum seeking proposals that architectural and engineering firms had

submitted to the College for six planned projects. On February 29, 2004, McGuiness sent

to Burnidge & Cassell Associates, an architectural firm, a letter stating, "if you submit


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price/fees as part of a submission in response to a Request for Qualifications (or

sometimes mistitled Request for Proposal) you can expect to be prosecuted."

       The complaint alleged that qualified and interested architectural and engineering

firms have declined to submit, have threatened to withdraw, or have withdrawn their

proposals because of the Department's threats to prosecute. Plaintiff requested the trial

court to (1) declare that the Local Government Selection Act does not prohibit schools and

units of local government from soliciting fee information in initial requests for proposals; (2)

enjoin the Department from threatening schools and units of local government with

subpoenas and freedom of information requests directed at responses to requests for

proposals; (3) enjoin the Department from threatening design professionals with

prosecution or disciplinary action for responding to solicitations that request fee proposals;

and (4) quash the subpoena the Department issued against the College.

       With its complaint, plaintiff filed an emergency motion for a temporary restraining

order and to quash the Department's subpoena. On March 4, 2004, the trial court entered

an agreed order stating that the College is not required to respond to the Department's

subpoena and that the Department will not threaten prosecution against any architect,

engineer, or land surveyor who includes fee information in his or her response to a request

for proposals. On March 12, 2004, the Department issued an order quashing the subpoena

issued against the College and sent a letter to plaintiff's counsel, stating its intention not to

litigate the matter any further and that it would not issue any new subpoenas in connection

with the six planned projects. Because the Department had quashed the subpoena, the

trial court denied plaintiff's emergency motion for a temporary restraining order.




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       Defendants moved to dismiss the complaint, originally pursuant to sections 2--615

and 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--615, 2--619(a)(9)

(West 2004)). Defendants then filed an amended motion to dismiss citing only section 2--

615. The amended motion argued that (1) there was no constitutional basis for the

complaint; (2) the Qualifications Based Selection Act and the Local Government Selection

Act authorized the Department to conduct the activities of which plaintiff complained; (3) the

claim was not ripe and did not allege any actual injury; and (4) the complaint asserted

claims on behalf of unnamed parties.          In response to the motion, plaintiff filed an

amendment to the complaint, listing 14 additional planned projects for which the College

will require architectural, engineering, and land surveying services.

       The trial court found that the Qualifications Based Selection Act applied to the

College and precluded the College from requesting fee information in its initial request for

proposals and that there was no viable controversy. Plaintiff timely appealed. The Illinois

Council of the American Institute of Architects, the American Council of Engineering

Companies of Illinois, the Illinois Society of Professional Engineers, the Illinois Professional

Land Surveyors Association, and the Structural Engineers Association of Illinois have jointly

submitted an amicus curiae brief.

                                      III. DISCUSSION

                                   A. Standard of Review

       Plaintiff appeals from the dismissal of its complaint. Defendants' original motion to

dismiss cited both sections 2--615 and 2--619 of the Code, while the amended motion

mentioned only section 2--615. Defendants' claim that there is no actual controversy relies

on matters outside the complaint and therefore should have been brought pursuant to


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section 2--619. However, the mislabeling of the motion does not require a reversal. In its

brief, plaintiff acknowledges the mislabeling and does not claim any prejudice as a result.

See Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 758

(2004). Accordingly, we will treat the motion as a combined motion brought under both

sections 2--615 and 2--619. See 735 ILCS 5/2--619.1 (West 2004).

       A section 2--615 motion to dismiss challenges the legal sufficiency of the complaint

by alleging defects on its face. Suburban 1, Inc. v. GHS Mortgage, LLC., 358 Ill. App. 3d

769, 772 (2005). When reviewing a section 2--615 motion to dismiss, a court must accept

as true all well-pleaded facts and interpret the allegations in the light most favorable to the

plaintiff. Young v. Bryco Arms, 213 Ill. 2d 433, 441 (2004). A court should grant a section

2--615 motion to dismiss only if it is apparent that the plaintiff cannot prove any set of facts

that will entitle it to recover. Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill. App.

3d 65, 71 (2005).

       A motion to dismiss under section 2--619(a)(9) admits the legal sufficiency of the

complaint and raises defects, defenses, or other affirmative matters that appear on the face

of the complaint or are established by external submissions and that act to defeat the

plaintiff's claim. McElmeel v. Village of Hoffman Estates, 359 Ill. App. 3d 824, 826-27

(2005). In ruling on a section 2--619 motion, a court must accept as true all well-pleaded

facts (Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85 (1995)), and must

view the pleadings and supporting evidence in the light most favorable to the plaintiff

(Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383 (2004)). The question is whether the

existence of a genuine issue of material fact precludes a dismissal or, absent such an issue

of fact, whether a dismissal is proper as a matter of law. Northern Trust Co. v. County of


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Lake, 353 Ill. App. 3d 268, 276 (2004). We review de novo a dismissal under either

section. Floyd v. Rockford Park District, 355 Ill. App. 3d 695, 699 (2005).

                              B. Standing/Actual Controversy

       Defendants' argument that there is no actual controversy has two bases. The first

aspect of the argument is that, because the Department withdrew the subpoena it issued to

plaintiff in connection with the 6 existing projects, and the 14 projects named in the

amendment to the complaint are merely prospective, there is no immediate controversy.

The second aspect of the argument is that, because the Department regulates design

professionals, plaintiff does not have standing to complain about any action the Department

takes in connection with its oversight of those professionals' activities.

       The doctrine of standing is designed to insure that the courts are accessible to

parties to resolve actual controversies between them and not to address abstract

questions, moot issues, or cases brought on behalf of others who may not desire judicial

aid. Burton v. Ramos, 341 Ill. App. 3d 122, 127 (2003). A party establishes standing by

demonstrating an injury to a legally cognizable interest. Village of Chatham v. County of

Sangamon, 216 Ill. 2d 402, 419 (2005). In the context of a declaratory judgment action,

there must be an actual controversy between adverse parties, with the party requesting the

declaration possessing some personal claim, status, or right that is capable of being

affected by the grant of such relief. Village of Chatham, 216 Ill. 2d at 420.

       We conclude that plaintiff has standing to pursue its claim. If plaintiff is correct that

the College has the right to solicit fee information in its initial requests for proposals, then

the Department has taken direct action that has interfered with that right. Although the

Department has withdrawn its subpoena, the fact remains that the Department has targeted


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design professionals who have responded to plaintiff's requests and has issued them

letters threatening prosecution. Although the Department has stated that it will no longer

threaten to prosecute design professionals who provide the requested fee information, the

complaint essentially alleges that the earlier threats have had a chilling effect. Thus, the

threats have directly interfered with plaintiff's ability to obtain the desired information. There

is an actual dispute here that can be resolved by the grant or denial of the relief plaintiff

seeks.

                      C. The College's Right to Solicit Fee information

         Defendants argue that the College is a "State agency" under the Qualifications

Based Selection Act, which expressly prohibits a State agency from formally or informally

requesting fee information in its initial request for proposals. Plaintiff argues that it is a

"political subdivision" under the Local Government Selection Act, which contains no such

provision. Defendants reply that, even if the Local Government Selection Act applies, its

purpose, like that of the Qualifications Based Selection Act, is to require that the

governmental unit or agency select design professionals on the basis of qualifications

instead of price.     Therefore, defendants urge us to interpret the Local Government

Selection Act as containing a similar ban against soliciting fee information.

                            1. Qualifications Based Selection Act

         Enacted in 1992, the Qualifications Based Selection Act states:

                "It is the policy of State agencies of this State to publicly announce all

         requirements for architectural, engineering, and land surveying services, to procure

         these services on the basis of demonstrated competence and qualifications, to

         negotiate contracts at fair and reasonable prices, and to authorize the Department of


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       Professional Regulation to enforce the provisions of Section 65 of this Act." 30 ILCS

       535/5 (West 2004).

The statute defines "State agency" as "any department, commission, council, board,

bureau, committee, institution, agency, university, government corporation, authority, or

other establishment or official of this State." 30 ILCS 535/15 (West 2004).

       The statute sets forth the following selection procedures. State agencies may

establish procedures to prequalify firms or may use prequalification lists that other agencies

have compiled. 30 ILCS 535/20 (West 2004). When a State agency is considering a

project requiring architectural, engineering, or land surveying services, it must provide at

least 14 days' notice, published in a professional services bulletin or the official State

newspaper. 30 ILCS 535/25 (West 2004). "[T]aking into account qualifications," an agency

must evaluate the firms that have responded to the notice and any prequalified firms. 30

ILCS 535/30 (West 2004). The agency may consider, but is not limited to considering,

"ability of professional personnel, past record and experience, performance data on file,

willingness to meet time requirements, location, workload of the firm and any other

qualifications based factors as the State agency may determine in writing are applicable."

30 ILCS 535/30 (West 2004). The statute directs the agency to establish a committee to

select firms. 30 ILCS 535/30 (West 2004).

       Relying on evaluations, discussions, and any presentations, the State agency must

select no less than three firms it deems to be qualified for the project and rank them in

order of qualifications. The agency shall then contact the firm ranked most preferred to

negotiate a contract at compensation that the agency determines in writing to be fair and

reasonable. 30 ILCS 535/35, 40(a) (West 2004). If the agency is unable to negotiate a


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satisfactory contract with the firm that is most preferred, then it shall terminate negotiations

with that firm and begin negotiations with the second most preferred firm on the list. 30

ILCS 535/40(b) (West 2004). The critical prohibition at issue here is that "[i]n no case shall

a State agency, prior to selecting a firm for negotiation under Section 40, seek formal or

informal submission of verbal or written estimates of costs or proposals in terms of dollars,

hours required, percentage of construction cost, or any other measure of compensation."

30 ILCS 535/30 (West 2004). The statute states that "a State agency may comply with

federal law and regulations including, but not limited to, Public Law 92--582 (Federal

Architect--Engineer Selection Law, Brooks Law, [40 U.S.C. '1101 et seq. (Supp. 20__)])

and take all necessary steps to adapt its rules, specifications, policies, and procedures

accordingly to remain eligible for federal aid." 30 ILCS 535/10 (West 2004). The statute

prohibits any person, corporation, or partnership licensed as an architect, engineer, or land

surveyor from engaging in any conduct that violates any of its provisions. 30 ILCS 535/65

(West 2004).

                             2. Local Government Selection Act

       Enacted in 1987, the Local Government Selection Act states that it "shall be the

policy of the political subdivisions of the State of Illinois to negotiate and enter into contracts

for architectural, engineering and land surveying services on the basis of demonstrated

competence and qualifications for the type of services required and at fair and reasonable

compensation." 50 ILCS 510/1 (West 2004). The statute defines a "political subdivision"

as "any school district and any unit of local government of fewer than 3,000,000

inhabitants, except home rule units." 50 ILCS 510/3(5) (West 2004).




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       The statute directs political subdivisions to allow firms to file annual statements of

qualifications and performance data. 50 ILCS 510/4 (West 2004). When a political

subdivision is considering a project, it must either mail notices to firms that have submitted

statements of qualifications or place an advertisement in a daily newspaper of general

circulation. 50 ILCS 510/4 (West 2004). The political subdivision must then evaluate the

interested firms by "taking into account qualifications, ability of professional personnel, past

record and experience, performance data on file, willingness to meet time and budget

requirements, location, workload of the firm and such other factors as the political

subdivision may determine in writing are applicable." 50 ILCS 510/5 (West 2004). The

political subdivision must select no less than three firms that it determines to be the most

qualified and rank them in order of their qualifications. 50 ILCS 510/6 (West 2004). It shall

contact the firm ranked most preferred and attempt to negotiate a contract at compensation

that the political subdivision determines in writing to be fair and reasonable. 50 ILCS 510/6,

7(1) (West 2004). If the political subdivision is unable to negotiate a satisfactory contract

with the firm that is most preferred, it shall terminate those negotiations and then begin

negotiations with the firm that is the next most preferred. 50 ILCS 510/7(2) (West 2004).

"[A] political subdivision of the State of Illinois may comply with federal law and regulations

and take all necessary steps to adapt its rules, specifications, policies and procedures

accordingly to remain eligible for federal aid." 50 ILCS 510/2 (West 2004).

                                3. Illinois Procurement Code

       Plaintiff directs us to the Illinois Procurement Code (Procurement Code) (30 ILCS

500/1--1 et seq. (West 2004)), which contains a more detailed definition of "State agency."

The policy of the Procurement Code is "that the principles of competitive bidding and


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economical procurement practices shall be applicable to all purchases and contracts by or

for any State agency." 30 ILCS 500/1--5 (West 2004). The general rule is that all State

construction contracts be procured by competitive sealed bidding. 30 ILCS 500/30--15(a)

(West 2004). One exception is that all construction-related professional services must be

awarded in accordance with the Qualifications Based Selection Act. 30 ILCS 500/30--15(c)

(West 2004).

       The Procurement Code defines a "State agency" as:

               "all boards, commissions, agencies, institutions, authorities, and bodies politic

       and corporate of the State, created by or in accordance with the constitution or

       statute, of the executive branch of State government and does include colleges,

       universities, and institutions under the jurisdiction of the governing boards of the

       University of Illinois, Southern Illinois University, Illinois State University, Eastern

       Illinois University, Northern Illinois University, Western Illinois University, Chicago

       State University, Governor State University, Northeastern Illinois University, and the

       Board of Higher Education. *** 'State agency' does not include units of local

       government, school districts, community colleges under the Public Community

       College Act [(110 ILCS 805/1--1 et seq. (West 2004))], and the Illinois

       Comprehensive Health Insurance Board." (Emphasis added.) 30 ILCS 500/1--

       15.100 (West 2004).

                          4. State Agency v. Political Subdivision

       Plaintiff urges us to hold that the language in the Procurement Code excluding

community colleges from the definition of "State agency" applies as well to the definition of

"State agency" under the Qualification Based Selection Act. Essentially, plaintiff is asking


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us to construe the two statutory schemes in pari materia.           Under this doctrine of

construction, two legislative acts that address the same subject are considered with

reference to one another, so that they may be given harmonious effect. Land v. Board of

Education of the City of Chicago, 202 Ill. 2d 414, 422 (2002). A court invokes this doctrine,

however, only to resolve an issue of statutory ambiguity. People v. Aleman, 355 Ill. App. 3d

619, 626 (2005).

       Here, there is no ambiguity to resolve. The Qualifications Based Selection Act

expressly defines "State agency." The legislature chose to use different language to define

the term in the Procurement Code. It is true that the Procurement Code refers to the

Qualifications Based Selection Act. Under the guise of statutory construction, however, a

court may not supply omissions, remedy defects, annex new provisions, add exceptions,

limitations, or conditions, or otherwise change the law so as to depart from the plain

meaning of the language employed in the statute. King v. First Capital Financial Services

Corp., 215 Ill. 2d 1, 26 (2005). What this means is that we will not simply import language

from the Procurement Code and add it to the definition of "State agency" found in the

Qualifications Based Selection Act. Instead, we will interpret the language as it appears.

       Although we do not simply adopt the language of the Procurement Act, we conclude

that the College is not a "State agency" under the Qualifications Based Selection Act but

instead is a "political subdivision" subject to the Local Government Selection Act. Our

conclusion is based on a review of the Public Community College Act (Community College

Act) (110 ILCS 805/1--1 et seq. (West 2004)) and Luciano v. Waubonsee Community

College, 245 Ill. App. 3d 1077 (1993).




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       The Community College Act created the Illinois Community College Board (State

Board). 110 ILCS 805/2--1 (West 2004). Any contiguous and compact territory with a

population of at least 60,000 may be organized into a community college district. 110 ILCS

805/3--1 (West 2004). A person desiring to organize a community college district must file

with the State Board a petition signed by at least 500 voters residing in the territory

described in the petition. 110 ILCS 805/3--1 (West 2004). The State Board conducts a

hearing on the petition, and, if it grants the petition, then the matter is put to a referendum.

110 ILCS 805/3--3, 3--4 (West 2004). The county or counties in which the proposed

district lies bear the cost of the referendum. 110 ILCS 805/3--4.1 (West 2004). If the

voters choose to establish a community college district, then an election is held to select

the members of the district's board. The board of a community college district is a body

politic and corporate. 110 ILCS 805/3--11 (West 2004). The district's revenues are

generated by local property taxes. 110 ILCS 805/3--20 through 20.10 (West 2004). A

community college district may borrow money for capital improvements, but it must submit

the issue to the voters of the district during a regular scheduled election. 110 ILCS 805/3A-

-1 (West 2004). Each district is empowered to levy taxes to meet debt obligations. 110

ILCS 805/3--33.4 (West 2004).

       We find Luciano to be highly instructive regarding plaintiff's status. There, the

defendant, an employee of a community college, sought protection under the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill.

Rev. Stat. 1989, ch. 85, par. 1--101 et seq. (now 745 ILCS 10/1--101 et seq. (West 2004))).

Luciano, 245 Ill. App. 3d at 1079. At the time in question, the Tort Immunity Act defined

"Local Public Entity" as "a county, township, municipality, municipal corporation, school


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district, school board, forest preserve district, park district, fire protection district, sanitary

district, and all other local governmental bodies. *** It does not include the State or any

office, officer, department, division, bureau, board, commission, university or similar agency

of the State." Ill. Rev. Stat. 1987, ch. 85, par. 1--206 (now 745 ILCS 10/1--206 (West

2004)). The court examined the nature of community college districts and held:

               "Where a particular entity, such as Waubonsee, must petition another public

       entity to hold public elections as a necessary antecedent to its creation, requires

       public elections of its governing board of trustees and is financed by taxes and other

       public funds, we are inexorably led to the conclusion that Waubonsee was an 'other

       governmental body' within the definition of local public entity ***." Luciano, 245 Ill.

       App. 3d at 1083.

       The same reasoning leads us to conclude that a community college district is a "unit

of local government" and therefore a "political subdivision" subject to the Local Government

Selection Act. Where, as here, a governmental body is created by local referendum and

funded by local property taxes, and its officials are locally elected, it is a stretch to say that

the body is merely an agency, a department, or another arm of the State.

       Defendants argue that the definition of "State agency" in the Qualifications Based

Selection Act is purposefully broad and stress that the definition contains no exceptions for

community colleges or units of local government. Defendants' argument would have some

appeal if the Local Government Selection Act did not exist. Because both acts regulate the

same subject matter, it would be difficult to see the need for the Local Government

Selection Act if the definition of "State agency" were as broad as defendants claim. See

Central Illinois Electrical Services, L.L.C. v. Slepian, 358 Ill. App. 3d 545, 549 (2005) (court


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should interpret a statute so that no term is rendered superfluous or meaningless).

Moreover, courts are to give a statute's words their plain and commonly understood

meanings. State Board of Elections v. Shelden, 354 Ill. App. 3d 506, 512 (2004). Adopting

defendants' construction would strain the commonly understood meanings of "State

agency" and "political subdivision."

        5. Soliciting Fee Information Under the Local Government Selection Act

       Defendants argue that, even if the College is a "political subdivision" subject to the

Local Government Selection Act, it nevertheless is prohibited from seeking fee information

in an initial request for proposals. According to defendants, because the Qualifications

Based Selection Act and the Local Government Selection Act have the same purpose, the

Local Government Selection Act should be interpreted as prohibiting political subdivisions

from soliciting fee information in initial requests for proposals.

       The primary rule of statutory construction is to ascertain and give effect to the intent

of the legislature. In re Application of the County Treasurer, 214 Ill. 2d 253, 258 (2005).

The best evidence of legislative intent is the language of the statute, and courts must give

the language its plain and ordinary meaning. Crusius v. Illinois Gaming Board, 216 Ill. 2d

315, 328 (2005). The simple fact is that, unlike the Qualifications Based Selection Act, the

Local Government Selection Act contains no express prohibition against requesting fee

information before selecting a firm for negotiation. When the language of a statute is clear

and unambiguous, a court must give it effect as written, without reading into it exceptions,

limitations, or conditions that the legislature did not express. Land, 202 Ill. 2d at 426.

       We are aware that, when the intent of the legislature is clearly expressed and the

objects and purposes of a statute are clearly set forth, the courts are not bound by the


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literal language of a particular clause of the statute that might defeat such clearly expressed

legislative intent. In re Application of the County Treasurer, 214 Ill. 2d at 259. Here, we do

not discern any such overriding intent. This is so because the language of each act's

section governing the evaluation procedure differs. Both sections contain very similar

language about the factors that governmental bodies should consider when selecting firms

for negotiation.   The Qualifications Based Selection Act lists as one of the factors,

"willingness to meet time requirements." 30 ILCS 535/30 (West 2004). After listing the

factors, the Qualifications Based Selection Act states that the State agency shall consider

"any other qualifications based factors as the State agency may determine in writing are

applicable." (Emphasis added.) 30 ILCS 535/30 (West 2004).

       The Local Government Selection Act lists as one of the factors for consideration,

"willingness to meet time and budget requirements." (Emphasis added.) 50 ILCS 510/5

(West 2004). Thus, the Local Government Selection Act expressly allows a political

subdivision to consider budgetary issues before selecting a firm for negotiation. Moreover,

the statute does not contain the "qualifications based factors" language found in the

Qualifications Based Selection Act.          Instead, it states that, after considering the

enumerated factors, the political subdivision shall consider "such other factors as the

political subdivision may determine in writing are applicable." 50 ILCS 510/5 (West 2004).

       These differences in language are significant and warrant a conclusion that, in the

Local Government Selection Act, the absence of a prohibition against seeking fee

information before selecting a firm for negotiation was not an oversight but likely was

intentional. We see no basis for creating such a prohibition through statutory interpretation.

If the legislature intended to prohibit the solicitation of cost estimates during the initial stage


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of the selection process, it could have amended the Local Government Selection Act at the

time that it enacted the Qualifications Based Selection Act.

       Defendants and amici do not cite any decision interpreting another jurisdiction's

statute governing the procurement of design professionals' services as containing an

implied prohibition against seeking fee information before selecting a qualified firm for

negotiation. The most persuasive authority apparently available to defendants and amici

are opinions of the Attorneys General of Colorado and Montana.                   These opinions

interpreted statutes with language similar to the Local Government Selection Act. Most

notably, the statutes did not expressly prohibit a state agency from soliciting cost

information before selecting a firm for negotiation. The opinions concluded that a state

agency may not request cost information or consider such information before selecting the

most highly qualified architect, engineer, or land surveyor for a project. 1992 Colo. Att'y

Gen. Op. No. 7; 1992 Mont. Att'y Gen. Op. No. 45. They relied heavily on the legislative

history of the Brooks Law and the American Bar Association Model Procurement Code for

State and Local Governments (1979) (ABA Model Code).

       The Brooks Law contains no prohibition like that found in section 30 of the

Qualifications Based Selection Act. See 40 U.S.C. ''1103, 1104 (Supp. 20__). However,

the legislative history states that "[u]nder no circumstances should the criteria developed by

an agency head relating to the ranking of architects and engineers on the basis of their

professional qualifications include or relate to the fee to be paid to the firm, either directly or

indirectly." S. Rep. No. 92--1219, 92d Cong., 2d Sess. 8, reprinted in 1972 U.S.C.C.A.N.

4767, 4774. The ABA Model Code is similar to the Local Government Selection Act and

likewise contains no express prohibition like that found in section 30 of the Qualifications


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Based Selection Act. The commentary to the ABA Model Code states that "[t]he principal

difference between the recommended procedure for architect-engineer and land surveyor

selection and the procedures used in most other competitive source selections is the point

at which price is considered." ABA Model Code '5--501, Committee Commentary at 41.

       Defendants' and amici's reliance on these sources does not alter our conclusion.

Only if a statute is ambiguous may a court consider extrinsic aids for construction, such as

legislative history, to determine legislative intent. In the absence of an ambiguity, the court

must rely on the plain and ordinary meaning of the words the legislature chose. Land, 202

Ill. 2d at 426. Also, there is nothing in the opinions of the Attorneys General of Colorado

and Montana indicating that the relevant statutes presented the language dichotomy that is

present in the Qualifications Based Selection Act and the Local Government Selection Act.

       We stress that, although a political subdivision is not prohibited from requesting fee

information before selecting a firm for negotiation, the selection ultimately must be based

on qualifications. The lack of an express prohibition against considering fee information

before selecting the most qualified firms should not detract from the overall purpose and

requirements of the Local Government Selection Act. For example, although the College

has requested fee information, its selection criteria are strictly based on qualifications.

Although one might wonder why the College has asked for fee information if it is not

relevant to the selection of the most qualified firm, it appropriately has refrained from

formally injecting any elements of competitive bidding into the selection process. We

simply hold that the College's requests for proposals do not violate the Local Government

Selection Act.




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          We are sympathetic to defendants' and amici's concerns. However, given the

language of the relevant statutes, we cannot create a legislative prohibition where none

exists.     Defendants' and amici's pleas are more appropriately directed toward the

legislature.

                                      IV. CONCLUSION

          We hold that (1) the complaint sufficiently alleges plaintiff's standing to seek a

declaratory judgment; (2) the College is a "political subdivision" and therefore subject to the

Local Government Selection Act; and (3) the Local Government Selection Act does not

prohibit the College from soliciting fee or cost information before selecting the most

qualified firm for negotiation.

          Accordingly, we reverse the judgment of the circuit court of Du Page County and

remand the cause.

          Reversed and remanded.

          BYRNE and KAPALA, JJ., concur.




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