specially concurring:
I concur with the result reached by the majority in this case. I write specially, however, to register my disagreement with my colleagues on both substantive and procedural grounds.
The trial court’s finding that Best Bus Joint Venture (Best Bus) was not a local business entity as defined by Rule 5.5 of the Board of Education of the City of Chicago (Board) is amply supported by the record. Laidlaw Transit’s participation in the joint venture resulted in a majority of Best Bus’s regular full-time work force being employed outside of the City of Chicago. Consequently, the trial court properly denied the plaintiffs requested relief under count I of their amended complaint.
I agree with the majority that Best Bus has waived the right to challenge the constitutionality of, or Board’s authority to promulgate, the 2% local business preference (LBP) set forth in Rule 5.5 and the subject bid specifications. By participating in the Board’s bidding process under Rule 5.5 and seeking to avail itself of the benefits of the 2% LBP without questioning the constitutionality of such a preference or the Board’s power to enact it, Best Bus waived its right to challenge the validity of Rule 5.5 and the LBP on either statutory or constitutional grounds. See Calabrese v. State Farm Mutual Automobile Insurance Co., 187 Ill. App. 3d 349, 543 N.E.2d 215 (1989). The trial court, therefore, properly denied the plaintiffs injunctive relief under counts II, VII and VIII of their amended complaint.
For the reasons stated above, and only for those reasons, I concur in the result reached by the majority in this case.
Substantively, I cannot agree that Best Bus was estopped to raise the invalidity of Rule 5.5 or the Board’s LBP. Equitable estoppel is a doctrine that acts to preclude a party from asserting rights against another who, in good faith, relied upon the party’s voluntary representations or conduct, and was thereby led to change its position for the worse. Trochelman v. Village of Maywood, 259 Ill. App. 3d 1, 631 N.E.2d 334 (1994); Stoller v. Exchange National Bank, 199 Ill. App. 3d 674, 557 N.E.2d 438 (1990). Nothing in the record in this case reflects that either the Board or RR Bus Service Joint Venture (RR Bus) changed its position in reliance upon any representation or conduct of the plaintiffs. Best Bus did not induce the Board to enact Rule 5.5 or the LBP; it did not induce the Board to advertise for bids; and it did not, by representation, action or inaction, induce RR Bus to participate in the subject bidding process. To my mind, the majority confuses waiver and estoppel. The doctrines are similar, but they are not identical.
Lastly, I believe that the majority should have refrained from addressing the validity of Rule 5.5 and the Board’s LBP. Once having found that Best Bus did not qualify as a local business entity under Rule 5.5 and that it had waived the right to challenge either the rule or the LBP, nothing more need have been stated. Particularly troubling to me are the majority’s constitutional findings. Constitutional questions should be avoided when the issue before a court can be decided on other grounds. Rescue Army v. Municipal Court, 331 U.S. 549, 568-69, 91 L. Ed. 1666, 1678, 67 S. Ct. 1409, 1419 (1947); People v. Mitchell, 155 Ill. 2d 344, 356, 614 N.E.2d 1213 (1993).