HERLHY MID CONTINENT CO v. THE STATE OF ILLINOIS (2001)

ORDER

This contract claim against the Respondent's Department of Transportation (IDOT) seeks additional contractor and sub-contractor payments for installation of sheet piling on a bridge construction project. This claim is before us on the Claimant general contractor's second amended complaint and the respondent's motion to dismiss that complaint.

The motion to dismiss asserts three grounds: (1) Claimant failed to exhaust its administrative remedies within IDOT (as required by / 25) of the Court of Claims Act (705 ILCS 505/25) by failing to file with IDOT a required sub-contractor certification during the IDOT administrative review process: (2) Claimant waived its claims for additional payment by failing to comply with the requirements in Article 109.09 of the IDOT Standard Specification for Road and Bridge Construction (which are part of the parties construction contract) by failing to file the required sub-contractor certification, which was ultimately filed with the complaint in this court, and (3) Claimant's failure to submit the sub-contractor certification to IDOT constituted a failure to satisfy a condition precedent to this claim.

Claimant's response essentially is that (a) its failure timely to file the sub-contractor certification is moot in that the IDOT's denial of this claim did not rely on the absence of the certification and IDOT was in no way prejudiced by the late filing of the document, (b) that IDOT affirmatively waived the requirement of the document, and (c) that the requirement has ultimately been satisfied in any event. In addition Claimant points out that the issue of the sub-contractor certification pertains only to one of the two distinct claims for additional contract payments in this case, i.e. the portion of the claim that represents the sub-contractor's claim which is being presented on its behalf by the general contractor. (This kind of sub-contractor claim is sometime referred to as a pass-through claim which is now explicitly permitted under Article 109.09 provided that the general contractor files the specified written certification in those cases where the contractor has not already made payment of the claimed additional amount to the sub-contractor).

This motion seeks to dismiss this case on three different -- but barely distinguishable -- theories of non--compliance with the Article 109.09 procedures, all of which focus on the one untimely filing of a single document which did not prompt IDOT to deny this claim during the 3-stage administrative process. However IDOT now seeks to paint this omission by the Claimant-- contractor, it appears to this court that there is ultimately but a single issue and that the Claimant is correct that the issue does not apply to the entirety of this case.

The court rejects the respondent's argument that the failure to file the sub-contractor certification in the administrative process, standing alone, vitiates the Claimant's exhaustion of its administrative remedies. There is simply no question here that the Claimant presented its claim to all three levels of IDOT review, and obtained a decision at each level. That is full exhaustion. Moreover at no point, on this record, did IDOT reject any part of this claim due to the absence of the certificate.

Respondent's waiver and condition precedent arguments are functionally if not theoretically equivalent. We reject respondent's contention and timely compliance with this certification requirement is either so absolute or so clear as to require dismissal under the circumstances presented on the record before us. We will deny the motion to dismiss on these bases, but will do so without prejudice, and will allow the respondent to assert this non-compliance with Article 109.09 as an affirmative defense if it chooses. In that event the Claimant will surely plead the mootness and IDOT waiver issues, and the matter can be taken up at trial where a more complete record can be made for the court's later consideration.

Wherefore, it is hereby ORDERED:

1. Respondent's motion to dismiss the second amended complaint is:

(a) denied with prejudice as to failure to exhaust administrative remedies; and

(b) denied without prejudice as to waiver and failure to satisfy a condition precedent with respect to Claimant's failure timely to file a sub-contractor certification in accordance with Article 109.09; and

2. This claim is remanded to the assigned Commissioner for further proceedings.

EPSTEIN, J.