Blind Industries & Services v. Maryland Department of General Services

BELL, Chief Judge. We granted certiorari in this case to resolve whether the preference in favor of the supplies and services of Blind Industries & Services of Maryland (“Blind Industries”), the appellant, prescribed in Maryland Code (1957, 1995 Repl.Vol., 1999 Cum.Supp.) § 14-103 of the State Finance and Procurement Article, 1 applies when Blind Industries provides supplies and services not ordinarily provided by it and it provides the supplies and services as a broker, rather than as a manufac ²²⁴ turer. The Circuit Court for Baltimore County answered, “no” and so shall we. 2 ²²⁵ Blind Industries, legislatively created to train and employ blind citizens, filed a declaratory judgment action in the Circuit Court for Baltimore County, in which it also sought injunctive relief against the Department of General Services, the appellee, in response to the appellee’s refusal to award it, pursuant to the statutory preference it enjoys and, thus, without competitive bidding, the Statewide Office Supply contract. At the heart of the case was, and is, § 14-103.

It provides, as relevant: “The State or a State aided or controlled entity shall buy supplies and services from: “(2) Blind Industries and Services of Maryland, if: “(i) Blind Industries and Services of Maryland provides the supplies or services; and “(ii) State Use Industries does not provide the supplies or services.... ” ²²⁶ There was, to be sure, no disagreement as to the fact that Blind Industries was entitled to a preference; rather, the dispute revolved around to what the preference related. In other words, the issue the declaratory judgment action presented was the meaning and reach of the statutory preference. Relevant to the interpretation of § 14-103 is the manner in which the appellant proposed to provide the supplies and services, as well as what the appellant intended to provide. Traditionally, Blind Industries has operated manufacturing plants, producing various goods, at which blind citizens are employed in the manufacturing process.

Among the goods manufactured, and relevant to the case sub judice are paper products, such as legal pads and easel paper, for office use. In addition to these products, the evidence presented at trial was, and the court found, that “What Blind Industries proposes to do is to utilize the services of 6-10 individuals who are legally blind: (1) to staff an office with phones and computers, (2) to take orders from State agencies needing office supplies under the contract to be awarded, (3) to order the goods, primarily from a single third party, and (4) to have most of the goods drop shipped from the third party to the agency placing the order. Profits of a substantial nature would inure to the benefit of Blind Industries if the contract is awarded to it, which profits would be used to provide services to the blind people of Maryland for whom it exists and works, in addition to the employment of as many as ten (10) individuals, who are legally blind, and would thereby directly profit by having full time employment.”[ 3 ] ²²⁷ Following a two day non-jury trial, the Circuit Court declared, “under the facts presented of record, Blind Industries and Services of Maryland ... is not entitled to a statutory preference by ... § 14-103 so as to require the State of Maryland to award it the Maryland State Office Supply Contract for the year 2000.” In so declaring, the court rejected the appellant’s argument that the preference applies whatever the source of the supplies and services provided, whether through manufacture, passthrough or subcontract, concluding, on the contrary, that it applied “to those goods and services being predominantly manufactured or otherwise provided by individuals who are legally blind.” Relevant to that conclusion, the court pointed out, was the emphasis in the statutes on “articles ‘manufactured’ by the blind.” It cited Maryland Code (1957, 1997 Replacement Volume) Article 30, § 3, which provides: “Powers of board of trustees of Blind Industries and Services of Maryland. The board of trustees of Blind Industries and Services of Maryland is authorized and empowered to apply such portion of their endowment fund and annual income as they may deem expedient to establish training and employment centers and to open a store for the sale of articles manufactured by the blind, and to extend the benefits of such centers and store to the adult blind of ²²⁸ this State not resident in the institutions, on such terms and under such regulations as they may prescribe,” and § 6(c) and (d): “(c) Duties generally. — The Blind Industries and Services of Maryland shall be open for the labor and manufactures of all blind citizens of Maryland over eighteen years of age, who can give satisfactory evidences of character and of their ability to do the work required of them.

All the profits arising from the operation of blind industries shall be used in furthering its usefulness. “(d) Acquisition of property; supervision, etc., of blind industries — The board • shall acquire suitable quarters by lease, purchase or otherwise in the State of Maryland and shall have full power to establish, maintain, direct and supervise all matters' pertaining to blind industries, its maintenance and regulation, including the purchase of all machinery and materials as may seem to them suitable and necessary, and the barter or exchange of articles or manufactures entrusted to them for disposal.” (Emphasis added). Aggrieved by that judgment, the appellant noted an appeal to the Court of Special Appeals and, at the same time, filed in this Court a Petition for Writ of Certiorari. We granted the petition while the case was pending in the intermediate appellate court. Blind Industries v. DGS, 359 Md. 28 , 753 A.2d 1 (2000).

The appellant submits that resolution of this case involves statutory interpretation. Section 14-103 is, to the appellant, “crystal clear.” Thus, application of the canons of statutory construction to the interpretation of § 14-103, it insists, leads to a clear and equitable result, that it is entitled to the preference even though it does not manufacture all of the products it will supply pursuant to the contract. Where the words of the statute are clear and unambiguous and express a clear meaning, the appellant asserts, effect will be given to the statute; there is no occasion to resort to legislative history. ²²⁹ The key word is “provide,” the appellant argues. Noting that it is defined by Black’s Law Dictionary (6th Ed.1990), p. 1224, as “to make, procure, or furnish for future use,” it states that “the statute’s requirement that the State purchase any supplies or services ‘provided’ by Blind Industries, specifically includes supplies and services which Blind Industries obtains (or procures) from third parties and then provides to the State.” Indeed, as the appellant sees it, “[b]ecause the statute requires State agencies to purchase office supplies ‘provided’ by Blind Industries, awarding the Office Supply Contract to anyone but Blind Industries would be an ultra vires act.” The appellee, of course, does not agree.

It agrees with the judgment of the Circuit Court because it believes that the preference to which Blind Industries is entitled applies only to awards of contracts involving supplies that Blind Industries manufactures or assembles. This, it asserts, is the Legislature’s intent, which is clearly discerned from the legislative history of the preference, the statutory context and the purpose of the preference. As to the latter, like the Circuit Court, the appellee finds relevant that the emphasis in passing the initial legislation, continued to today, citing and quoting COMAR 21.11.05.01.B (l), 4 was on articles manufactured by blind individuals. Accordingly, it concludes: “By attempting to take over the statewide contract for office supplies, for which Blind Industries would neither manufacture the goods provided nor add value to the goods provided, Blind Industries is overreaching its legislatively mandated preference.” Also relevant, the appellee submits, is the fact that when the preference was initially given to the appellant, the appellant was engaged in the manufacture of textiles, including uniforms, surgical drapes and surgical wraps.

Furthermore, asserting that “[t]he Procurement Law generally requires that ²³⁰ goods and services be purchased with competitive means to promote the integrity and maximize value to the State,” citing § 11-201, 5 the appellee cites Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129, 135 , 747 A.2d 625, 628 (2000), quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 , 517 A.2d 730, 732 (1986), for the proposition that adopting the construction urged by the appellant would lead to “an illogical or unreasonable result, or one which is inconsistent with common sense.” ²²⁹ 'Blind Industries and Services of Maryland’ means the entity designated by law to produce supplies manufactured and assembled by processes involving blind workers.” ²³⁰ Alternatively, the appellee contends that, apart from the statutory language and the legislative history, the § 14-103 preference simply can not apply in the situation where the provider of goods and supplies is a mere broker of the goods and supplies. Such a construction of § 14-103, it asserts, is inconsistent with the procurement regulations applicable to the appellant, Chapter 05. of COMAR 21.11., 6 and would ²³¹ undermine the goals of State procurement, “to foster competition and to obtain the best value for the taxpayer.” “The paramount object of statutory construction is the ascertainment and effectuation of the real intention of the Legislature.” Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 301 , 783 A.2d 667, 670 (2001). As we have said many times, most recently in WCI v. Geiger, 371 Md. 125, 140 , 807 A.2d 32, 41 (2002), we start our search for legislative intent with the words of the statute being construed.

When those words are clear and unambiguous, viewed “in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood,” Derry v. State, 358 Md. 325, 335 , 748 A.2d 478, 483 (2000), we look no further, Marriott Employees v. MVA, 346 Md. 437, 445 , 697 A.2d 455, 458 ; rather, as the appellant points out, giving the words their commonly understood meaning, we give effect to the statute as written. Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204, 1206-1207 (1994). Moreover, we neither add nor delete words in order to give the statute a meaning not otherwise communicated by the language used or to “reflect an intent not evidenced in that language,” Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 755 (1993). And we do not construe the statute with “ ‘forced or subtle interpretations’ that limit or extend its application.” Id.

(quoting Tucker v. Fireman’s Fund Insurance Co., 308 Md. 69, 73 , 517 A.2d 730, 732 (1986)). Only when the statutory language is unclear and ambiguous, will we look to other sources, such as the legislative history, to discover legislative intent. Geiger, 371 Md. 125, 141 , 807 A.2d 32, 42 (2002); Degren, 352 Md. 400, 417 , 722 A.2d 887, 895 (1999); Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992). With regard to determining whether a statute is ambiguous, we have been clear; an ambiguity may still exist even when the words of the statute are themselves “crystal clear.” ²³² That occurs when its application in a given situation is not clear.

See Gardner v. State, 344 Md. 642 , 689 A.2d 610, 613 (1997). This is consistent with this Court’s recognition that a term which is unambiguous in one context may be ambiguous in another. Webster v. State, 359 Md. 465, 481 , 754 A.2d 1004, 1012 (2000); Sullins v. Allstate, 340 Md. 503, 508 , 667 A.2d 617, 619 (1995); Tucker v. Fireman’s Fund Ins. Co., 308 Md. at 74 , 517 A.2d at 732 (“That a term may be free from ambiguity when used in one context but of doubtful application in another context is well settled.”).

We have also acknowledged that “[language can be regarded as ambiguous in two different respects: 1) it may be intrinsically unclear ...; or 2) its intrinsic meaning may be fairly clear, but its application to . a particular object or circumstance may be uncertain.” Gardner v. State, 344 Md. at 648-49 , 689 A.2d at 613 , (quoting Bernhardt v. Hartford Fire Ins. Co., 102 Md.App. 45, 54 , 648 A.2d 1047, 1051 (1994) quoting Town & Country v. Comcast Cablevision, 70 Md.App. 272, 280 , 520 A.2d 1129, 1132 , cert. denied, 310 Md. 2 , 526 A.2d 954 (1987)). “Provide” is the critical word. We also agree with the appellant that it has a clear and an expansive meaning. In addition to making it, a product or good can be provided if it is procured or otherwise furnished for future use.

See Black’s Law Dictionary, at 1224 Thus, given the expansive meaning of “provide,” the requirements of the § 14-103 preference conceivably could be complied with either by Blind Industries providing products it makes or those that it procures for later resale. The appellant admits that it provides only the office supplies it manufactures, although it is quick to point out that it is able to-it could-procure the other supplies and services called for by the Statewide Office Supply contract: “With respect to office supplies, Blind Industries provides (or at least has the ability to provide) two types of products: (1) products it actually manufactures itself (e.g. certain paper products) and (2) products manufactured by others which Blind Industries procures and sells, like a retailer, to an end user.” ²³³ Because “provides” encompasses both manufacture and procurement, by its own admission, the appellant has not provided supplies and services by means of procurement, although prepared to do so now. Furthermore, when awarded the preference at issue, the appellant “provided” only products that it manufactured. It follows, therefore, that the question that must be answered is whether the General Assembly intended the preference to apply to the latter products or to all products that the appellant could, or has the ability to, provide.

Section 14-103 speaks in the present tense. It refers to supplies and services that the appellant “provides;” it does not by its terms refer to those that the appellant has the ability to provide. This raises the question of whether the preference applies only to those supplies and services actually provided, however acquired, or to those that the appellant could, but has yet to, provide. Given the context in general and in which “provides” is used, and particularly that the appellant has never provided products that it did not manufacture, legislative intent on this point is at least unclear.

Therefore, the term, “provides,” is ambiguous. Having determined that the statute is ambiguous, it is necessary that we seek the legislative intent by reviewing the history of the preference. The subject preference