concurring:
While I agree with the judgment in this case, I cannot accept the majority’s analysis. In the second half of the opinion, the majority correctly finds that "the contract period has expired and therefore mandamus relief is unavailable.” (163 Ill. 2d at 168.) Prior to this holding, however, the majority performs a gratuitous and flawed review of the competitive bidding statute and finds that a county board can properly consider support for a mentally handicapped training program in deciding to whom a contract should be awarded. Because the majority should never have reached the issue of the propriety of the County’s justifications for awarding the contract, and because the majority’s analysis of the competitive bidding statute is patently faulty, I write separately.
In 1991, defendant, Tazewell County (the County), solicited bids for the award of a food service contract. The County received two bids for the contract, one from plaintiff, Court Street Steak House, Inc., and one from the Tazewell County Resource Center (the Resource Center). Plaintiff submitted a bid of $6.22 per day/per inmate, and the Resource Center submitted a bid of $6.29 per day/per inmate.
On December 23, 1991, the county board rejected the bid submitted by plaintiff and awarded the food service contract to the Resource Center. The board based its decision on: (1) the Resource Center’s past performance, and (2) the fact that approximately 60% of the Resource Center’s food service training program for the mentally handicapped was based on the county jail food contract.
The contract for providing food service for the county jail began on January 18, 1992. The contract terminated on December 1, 1992.
On April 14, 1992, months after the contract period had expired, plaintiff filed a petition for mandamus. In its petition, plaintiff alleged that the County had failed to award the contract to the "lowest responsible bidder,” in violation of section 5 — 1022 of the Counties Code (Ill. Rev. Stat. 1991, ch. 34, par. 5 — 1022). The pertinent portion of section 5 — 1022 that was in effect at the time stated:
"Competitive bids: Any purchase by a county with fewer than 2,000,000 inhabitants of services, materials, equipment or supplies in excess of $10,000, other than professional services, shall be contracted for in one of the following ways:
(1) by a contract let to the lowest responsible bidder ***
***
In determining the lowest responsible bidder, the county board shall take into consideration the qualities of the articles supplied, their conformity with the specifications, their suitability to the requirements of the county and the delivery terms.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 34, par. 5 — 1002.
The circuit court ruled that it could not review the County’s determination of the lowest responsible bidder absent an allegation of fraud. Therefore, the circuit court dismissed the petition.
The appellate court reversed, holding that mandamus can also be issued on a showing of manifest injustice or a palpable abuse of discretion. (249 Ill. App. 3d at 921.) That court found that the petition suggested a palpable abuse of discretion and a manifestly unjust exercise of discretionary power. (249 Ill. App. 3d at 921.) It further held that if the County is shown to have violated the statute, plaintiff would be entitled to damages.
On the County’s appeal to this court, a majority of this court reverses the appellate court. After a review of the competitive bidding statute, the majority finds that the board’s determination was not an arbitrary preference for one bidder over the other because food service training for the mentally handicapped is a reasonable basis on which to award a public contract. 163 Ill. 2d at 167- 68.
Subsequently, however, the majority goes on to hold that mandamus could not issue in this case — no matter what the plaintiff alleged in its petition. (163 Ill. 2d at 168- 69.) As the majority correctly points out, "[a]t this point in time, the contract period has expired and therefore mandamus relief is unavailable.” 163 Ill. 2d at 168.
If this is so, why then has the majority reached the substantive arguments? This case should have been dismissed as moot because, at the time the suit was filed, the relief sought was no longer available. In analyzing and discussing the substantive issues, the majority has, in essence, issued an unnecessary advisory opinion regarding the interpretation of the competitive bidding statute. The issuance of advisory opinions is not the function of this court. See Barth v. Reagan (1990), 139 Ill. 2d 399, 421 (courts of review "will not decide moot or abstract questions, render advisory opinions, or consider issues that are not essential to the disposition of the cause or where the result will not be affected regardless of how the issues are decided”).
Even more disturbing than the fact that today’s opinion is advisory in nature is the fact that the majority’s analysis of the competitive bidding statute is seriously flawed. I can only surmise that the majority has turned a blind eye to the clear language of the statute, in order to do what it feels is the "right thing.”
The competitive bidding statute unequivocally states:
"In determining the lowest responsible bidder, the county board shall take into consideration the qualities of the articles supplied, their conformity with the specifications, their suitability to the requirements of the county and the delivery terms.” (Ill. Rev. Stat. 1991, ch. 34, par. 5 — 1022.)
An objective reading of this section reveals that the focus of this entire section is on the phrase "articles supplied.” The legislature has not introduced any external considerations, nor should this court look for any. That is, all modifying clauses should be interpreted in reference to the phrase "articles supplied.”
Accordingly, a county board is to take into consideration: (1) the qualities of the "articles supplied”; (2) the conformity of the "articles supplied” with the specifications; (3) the suitability of the "articles supplied” to the requirements of the county; and (4) the delivery terms of the "articles supplied.” Thus, under a proper reading of the competitive bidding statute, there is no room for the county board to take into consideration its own, albeit understandable, social policy interests.
The majority, however, has ignored the express language of the statute and finds that under the suitability of the articles supplied criterion, the County may take into account reasonable benefits to the County arising from each bid. Extrapolating from there, the majority finds that the additional benefit provided by the Resource Center — in providing food service training for the mentally handicapped — made it more suitable to the requirements of the County. The majority finds that this additional benefit was a proper factor for the board to consider, and concludes that it was not an abuse of discretion for the board to have granted the contract to the Resource Center.
The majority’s reading of the statute, however, does not comport with its text. As noted above, the suitability criterion concerns itself only with the specific articles supplied. That is, the only question to be asked is whether the food supplied is suitable for the requirements of the county jail. Other potential externalities simply do not and should not enter into the equation. Thus, in this case, whether the food was prepared by persons who are handicapped or not is completely irrelevant.
In addition to the majority’s disregard for the clear language of the statute, the majority has also failed to give meaning to the purpose of the competitive bidding statute. As the majority itself stated, competitive bidding statutes are enacted " 'for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption and to secure the best work or supplies at the lowest price practicable.’ [Citations.]” (163 Ill. 2d at 165.) Competitive bidding statutes are not the vehicles for local governments to implement their public policy agendas, however laudable. Nonetheless, such a vehicle is exactly what the majority has now provided. The opening provided by this advisory opinion will lend itself to exactly the type of creative bid manipulation that the statute was designed to prevent.
Finally, permit me to suggest that if the legislature had wanted county boards to consider factors other than the ones listed, it could have expressly so provided. This court should not — under the guise of statutory construction — act as a superlegislature and rewrite the statute.