construction project known as the metro east forensics lab the first and he was the lowest bidder on the project and can take up with the second lowest better there's no dispute in this appeal that river city was the lowest better or that river city wasn't responsible better this appeal involves the issue of whether river city's it was responsive the c d b rejected river city's bid as non responsive based upon a purported requirement that was not set forth in the documents c d b has taken the position that it protected subcontractor listed on the bid must actually south perform the identify trait work because one of river city's protected subs was not planning on self performing the identified plumbing work but it stead was going to subcontract that out to a lower tier  asserting claims for declaratory relief injunctive relief and judicial review of an administrative decision river city allege that the c d p reviewed and rejected river city's bid as non responsive based upon a requirement that was not set forth in the big documents in violation of the procurement code the circuit court initially granted a preliminary injunction but later dismissed river city's claims under section two six nineteen based upon the circuit court's belief that it did not have jurisdiction to review the c v s decisions the c d b thereafter awarded the contract to integra as the lowest response and i'm responsible better there after river city filed lawsuit number two and in this lawsuit river city challenge the award of the the work on the project has been done but there is still a significant amount of work left to be done on the project i intend to make three points today first at the circuit court here in dismissing river city's claims and lawsuit number one because the complaint  law and the claims were not barred by any other affirmative matter but number two the circuit court erred in dismissing reverse these claims in the second lawsuit under the doctrine of race judicata because the facts giving rise to the claims and lawsuit number two did not occur until after the judgment was entered in lawsuit number one and there is this appeal is not moot because there are still several forms of relief available on remand thanks my first point circuit court erred in dismissing river city's claims in the first lawsuit the claims were other affirmative matter one of the big issues in this appeal is the issue of discretion did the c v s actions involve the exercise of discretion again the issue is the responsiveness of river cities that the circuit court never reached the merits of this can only consider two types of criteria first objective criteria the code the code says the criteria must be objective we measure all not subjective discretion involves something in the nature of subjectivity not discretion to review the bid for responsiveness based upon that criteria that was not in the documents the cd takes great liberties with language of the procurement code that we see a lot of reference to the best the documents those criteria have to have to be objective we measurable how do you determine if it is responsive you look at the big documents and see what was required and you do a matter of comparison the best interest determination just is not share the basis of them finding our kid was non responsive it was because of this stuff performance requirement that the c v alleges was in the documents we allege it was not so if the fifty some performance requirement is not in the bid documents the c d b can not review this exception as well it's not political here the c d b never made any determination that this contract should be awarded to anyone other than the lowest responsive and responsible better in fact the c v it ultimately awarded the contract precisely rejected or to act with unfair favoritism or any other basis that provides judicial review in the courts the language does not allow this to be a pick and choose which vigorous it lights or which gives it likes or doesn't like language just doesn't allow them in the state to make sure that the process was fair legislative history behind the code and that the power of our own purchasing act highlighted the many black eyes of the state of illinois taken as a result of rights and and wrongful acts of its government officials that would just render the procurement meaningless there would be no reason to have it certainly this was never intended by the legislature that issues in the field just don't involve discretion exercised by the  the circuit court can still enter some form of relief to address that contract for example the circuit court can issue a mandatory injunction refinery in the sea to rescind the contract because the contract was was issued in violation of the or i think you're out of the problem here is that entire right in the city were were both parties to previous proceedings below and knew that this issue was not finished so they proceeded on that contract at their own risk and i think that the court still they would issue they said they could issue the declaration of a contract that's now in void and they would allow the person who was performing under the contract to recover and want to merrill wait for the work that had been performed to date but they were not allowed to to recover under prohibiting the work further pending final judgment on the merits the circuit court can enter a permanent injunction after final judgment on the merits prohibiting the cd of york integra from proceeding with the project under that july two thousand and eleven fit the circuit court can see that the circuit court can order is that river city gets to step in and take over the contract i think river city could do that relatively quickly i don't think that would require a whole lot of time or delay in doing that we also cited some cases and i would prefer that every opportunity requested an interim relief to maintain the status quo to preserve its primaries in this case we have opposed every one request for delay we have moved to expedite these appeals we've done everything in our power to try to keep us in a position where the circuit court can give us relief and remain if we are successful and feel that the end of the day this is a case in equity the circuit court has brought an equitable powers to fashion equitable relief both relief and remedial relief upon final judgment we believe that the circuit court still has the power to grant river city some form or fully in this case we believe that this court can give the circuit court some direction as to the power of having a subcontractor or part of the work of why what's the difference between the two other than was more expensive than the other the difference between the the standard documents for construction the board standard documents for construction which by their terms are incorporated into every contract and they specify that any time anybody submit to  perform sixty percent of the last of the work and the primary reforms or say essentially essentially yes you are you know and the sell passed to be pre qualified and the south contractors and the specific in this five specific fields including one as relevant to this and that case the sub contractor that specified must be ordered from issue with the word of a public contract they will you can bring that claim when you're claiming for when you're bringing claim it galaxy but there are other militating concerns at work here such as public construction of the statute because they did not comply they were not responsive because they did not comply with the requirement that their names suck for plumbing which so perform forty percent of its work and it was going to suffer from try to address some of those points i had planned to talk about four took the arguments we have in our brief before going to chance i will discuss those but i think it's important to understand in the first cause of action attached to the identified as the plumbing subcontractor in the bit actually written into river cities the invitation is required a prequalification number from the subcontractors i think it's fair to conclude from th license to perform on the work in the state of illinois they're not licensed to oversee the second tier subcontractor that would actually be illegal for them to act as in a capacity of having the performance of the sub while me it's one thing to be a general contractor i have multiple trades and sub it out but to actually have the responsibility over the plumbing we have an element of plumbing code in the state of illinois it applies to these capital development projects in general that's a very important code you want to have a pre qualified plumbing contractor to perform that work river city did not so i think that answers one of it's not just the self performance theory that argument proof that that's the main problem the main problem was identifying somebody who wasn't going to do the work but also didn't have the authority to act as a plumbing contractor they are not a truly plumbing true woman contractor appendix so and my view i think that those provide some limitation on the capital to go towards for my position is if they abuse their discretion because there is discretion in this procurement but i want to talk about that but if they use that discretion if they make a clearly erroneous decision i don't think this is clearly erroneous i think it could be debated and were pursued to make a good argument and we can make a good argument but it's fairly debatable it's not arbitrary breaches it's not clearly erroneous and there's no violation of the law if there's an article basis for which it is sponsored so i think that eliminates the first cause of action but we've also said and after further thought i will acknowledge that in terms of asking for injunctive relief in the second was that while i don't think there's a practical remedy there in theory there is but the first cause of action is moot the first the contract has been partially performed we don't disagree with you proximate twenty percent assess you can argue a little bit of stored materials and all that trying to undo that would be terrific but the point is i think the first cause of action is moot i don't think there's any way anything can be done under that first action second action with respect to injunctive action i will concede we argued in this i'm going to concede that it's not  hour to do something that's not always worked out well but i really do think that you don't have submitted your steps i think it's really the general's position is that had there been allegations of fraud were city one hundred sixty seven thousand five hundred dollars and labor that's that's a definition of a subcontractor who's going to perform necessarily all the work that they're going to perform and c d b explained that they're pre publication required so make sure they knew who fact of the matter is as of just before the dismissal of the first cause of action river city was aware of the facts of in general integrity it was generally aware that there that they had this issue about maybe th the identify trade work we never got and a chance to to address the issue of recall in fact the evidence i remembered showed that the c b actually told river city that the identified stuff contractors did arbitrary capricious contrary a law to law or an abuse of discretion so it's not limited to allegations of fraud illegality third this issue about the twenty percent forty percent that multiple contracts with several different contractors that section in the standard documents for construction referred to contractors there's no reference to sub contractors there's reference to general contractors you know general contractors the single time jobs in addition to that even if that did apply to this single prime job the evidence would show that custom mechanical that i think identified protect itself an issue for cities bid what has self performed forty percent of its contract more than forty percent of its contract with river city the standard documents for construction or fire forty percent of every separate contract the scene in boston would have had one contact with river city from each of the protected trays together and it package before and it would have stopped performing more than forty percent of that but again river city never got the chance to address that in the search for justice turner did hit the nail on the head when he said the c v is essentially arguing that they're done you're wrong but it doesn't matter it's nothing you can do about it especially the c d b is arguing that this court is an inferior tribunal that can't do anything about what the c d c does or doesn't do and i don't think that that's what the law said with respect to remedies while things have changed since the lawsuits were just next to acknowledge that and i think that because we were things were dismissed out on a motion to dismiss if this case is remanded back to the circuit court certainly we should be given the opportunity