Department of General Services v. Harmans Associates Ltd. Partnership

WILNER, Chief Judge. The State Department of General Services (DGS) appeals from a judgment of the Circuit Court for Baltimore City affirming, with one modification, a decision of the Board of Contract Appeals (BCA) awarding $163,719 in extra compensation to appellee, Harmans Associates Limited Partnership. DGS complains that (1) BCA had no jurisdiction in the matter, (2) BCA and the court were wrong in awarding the extra compensation, and (3) the court was wrong in adding predecision interest to the BCA award when BCA had specifically rejected Harmans’ request for such interest. Harmans, of ⁵³⁹ course, defends the judgment but, in addition, has moved to dismiss this appeal as not allowed by law.

We shall deny the motion to dismiss, affirm the judgment in part, and reverse it in part. Underlying Facts The State owned a tract of unimproved land in Anne Arundel County on which it desired to have constructed a headquarters facility for the State Highway Administration. The facility was to consist of three buildings and related storage and parking areas. Normally, the State would have proceeded to procure the services of an architect/engineer to design the facility and then, through competitive bidding, select a contractor to build it in accordance with the plans and specifications prepared by the architect/engineer.

It would have financed the construction through the sale of State general obligation bonds. See, in general, Md.Code, State Fin. & Proc. art., §§ 13-102, 8-114. In this instance, the State chose a different method of achieving the result, one that involved a form of “creative financing.” The principal objective, we are informed, was to avoid the creation of a State “debt” — i.e., a pledge of the full faith and credit of the State — to finance the construction and yet have the interest paid on the private financing remain tax-exempt. Through a number of agreements entered into in March and April, 1988, including a ground lease, a conditional purchase agreement, and a facility agreement, the deal was structured in the following manner.

Subject to certain contingencies, the State leased the unimproved land to Harmans for a 16-year period at a rental of $l/year. Harmans designed and constructed a facility “substantially in accordance with the Conceptual Plans and Technical Specifications” that were included with the State’s request for proposals. When the facility was completed, Harmans subleased the ground to the State for the remaining term of the ground lease and sold the improvements to the State in accordance with the conditional purchase ⁵⁴⁰ agreement. At the end of the 16-year period, the ground lease (and the sublease) will end, and the State will own both the land and the improvements free of any encumbrances.

The $10.9 million cost of construction was financed through a private sale of certificates of participation. The proceeds were deposited with a trustee and were used to pay Harmans as construction proceeded. To secure the certificates, Harmans mortgaged to the trustee its interest in the land and in the contracts with the State. The State, as “purchaser” of the facility, is required to make semi-annual payments to the trustee in amounts sufficient to pay the principal and interest on the certificates over the term of the ground lease.

The State retains the right, however, to terminate its obligation to make these payments at any time, in which event the trustee has the right to take possession of the land and improvements and either to sell or operate them in order to discharge its obligations to Harmans and the certificate holders. In November, 1989, Harmans filed with DGS two formal claims for an equitable adjustment in the contract price, each claim having several sub-parts. One claim sought $186,860 for unexpected site conditions, including excessive amounts of topsoil; the other sought $93,854 for additional work necessary to comply with directives of the fire marshal, including the installation of smoke vents. When, on May 24, 1990, the procurement officer denied those claims, Harmans appealed to BCA In November, 1990, BCA, in a Memorandum Decision, concluded that it had no jurisdiction and, for that reason, dismissed the appeals.

BCA viewed the transaction from which the claims arose as a lease of real property rather than as a construction contract, and Md.Code, State Fin. & Proc. art., § 15-211(a)(2) excepts from BCA’s jurisdiction contract claims relating to a lease of real property. Harmans sought judicial review of that decision, and, in an order entered in April, 1991, the Circuit Court for Baltimore County concluded, as a matter of law, that the claims were not contract claims relating to a lease of real property. It therefore reversed the dismissals by BCA and remanded the case to that Board for further proceedings. ⁵⁴¹ Upon the remand, BCA heard evidence bearing on what remained of the two claims. 1 In a decision filed on May 7, 1992, BCA directed a total equitable adjustment of $163,719, consisting principally of $113,329 for the soil conditions, $11,-148 for service road undercuts, $6,162 for reseeding, and $31,677 for the smoke vents. Nothing was said in the decision about pre-decision interest.

In its claims, Harmans had sought interest from November, 1989, but, according to BCA, it offered no evidence at the BCA hearing regarding pre-decision interest. After some procedural skirmishing, the Circuit Court for Baltimore City directed BCA to consider Harmans’ request for pre-decision interest, which had been renewed in a motion for reconsideration filed three days after DGS had filed for judicial review of the BCA decision. BCA did consider the motion but decided not to award any pre-decision interest. The case then returned to the circuit court which, on December 8, 1992, affirmed BCA except with respect to pre-decision interest.

As to that, the court concluded that Harmans was entitled by law to such interest, dating from May 24, 1990 — the date of the procurement officer’s final decision on the claims. From an amended order dated January 5, 1993, that set the interest rate at 10%, DGS has appealed, raising the three issues noted above. Motion To Dismiss Md.Code, Cts. & Jud.Proc. art., § 12-301 permits a party to appeal from a final judgment entered by a circuit court, except as provided in § 12-302. Section 12-302(a) provides, in relevant part, that “[ujnless a right to appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legisla ⁵⁴² tive body.” 2 Where the action in the circuit court is thus one to review the decision of an administrative agency, no appeal will lie to this Court unless the right to take such an appeal is expressly granted somewhere in the law.

That right is found generally in the “contested case” subtitle of the Administrative Procedure Act (Md.Code, State Gov’t art., title 10, subtitle 2). It is undisputed that BCA is an “agency” within the ambit of that subtitle, and it is also undisputed that the proceeding before BCA in this case was a “contested case.” Section 10-215 of the Cts. & Jud.Proc. article entitles a party aggrieved by the final decision of an agency in a contested case to judicial review in the appropriate circuit court, and § 10-216, with two exceptions not relevant here, entitles any party aggrieved by a final judgment of the circuit court under the subtitle to appeal to this Court. 3 ⁵⁴³ The “glitch” in this seemingly clear and express authority for DGS to pursue this appeal arises from an evident Code Revision error in the State Finance and Procurement article. To document that error, we need to recount some of the history of the BCA. In 1978, by 1978 Md.Laws, ch. 418, the Legislature created a Board of Appeals within the State Department of Transportation, with jurisdiction to determine disputes arising from contracts, other than labor contracts, with that Department.

The law governing the Board was codified in title 2, subtitle 6 of the Transportation article. Section 2-604 provided that “the Administrative Procedure Act shall apply to proceedings under this subtitle,” which sufficed to invoke the judicial review sections of that Act. In 1980, by 1980 Md.Laws, ch. 775, the General Assembly generally rewrote the State procurement law, codifying it in a new article 21 of the Code. In that revision, it abolished the board created in 1978 and, in § 7-202 of art. 21, created in its place BCA, with jurisdiction to hear appeals arising from procurement disputes involving any State procuring agency.

In § 7-203, the Legislature provided that the decisions of BCA were subject to judicial review “in accordance with the provisions of the Administrative Procedure Act as they relate to judicial review of contested cases.” In 1984, the State Government article was enacted as part of the on-going Code Revision process. In that article, the various provisions formerly known as the Administrative Procedure Act were divided into separate subtitles, each dealing with a separate aspect of administrative practice. They were captioned, respectively, Administrative Procedure Act — Regu lations (subtitle 1), Administrative Procedure Act — Contested Cases (subtitle 2), Administrative Procedure Act — Declarato ry Rulings (subtitle 3), and Administrative Procedure Act— Licensing (subtitle 4). This was done principally because there was a host of other statutes, not part of the Administra ⁵⁴⁴ tive Procedure Act, dealing with regulations, and the Code Revision Commission and the Legislature desired to congregate all relevant statutes on that subject in one part of the Code.

In 1985, by 1985 Md.Laws, ch. 11, the Legislature enacted Division I of the State Finance and Procurement article (hereafter referred to as SFP) — the part dealing with State finance. Because it anticipated that substantive revisions to the State procurement laws would be proposed in the next session, it deferred dealing with any Code Revision of those laws and, instead, by 1985 Md.Laws, ch. 12, simply transferred without change art. 21 of the Code to become Division II of the new article. Thus, what had been art. 21, § 7-203 became SFP, § 17-203. The anticipated substantive revision to the procurement law came in 1986 (1986 Md.Laws, ch. 840).

BCA was continued in SFP, § 11-138. In § 11-139, dealing with judicial review of BCA decisions, the Legislature took account of the splitting of the Administrative Procedure Act in the State Government article and, instead of referring to that Act by name, provided that BCA decisions were subject to judicial review in accordance with the provisions of “title 10, subtitle 2 of the State Government article (Administrative Procedure Act — Contested Cases).” In 1988, Division II of the new SFP article, as substantively rewritten in 1986, was subjected to the Code Revision process (1988 Md.Laws, ch. 48). Regrettably, in revising SFP, § 11— 139 as new SFP, § 15-223, the Code Revision unit proposed, and the Legislature enacted, language stating that a decision of BCA is subject to judicial review “in accordance with § 10-215 of the State Government article.” That section, it will be recalled, provides for judicial review in the circuit court. It is § 10-216 that permits appeals to this Court.

Thus, by making the cross-reference more specific, the General Assembly seemingly eliminated the right of further appeal from the circuit courts, and that is the basis of Harmans’ motion to dismiss. ⁵⁴⁵ There are two reasons why we reject the motion. The first is that, in construing statutes, the predominant goal is to ascertain and carry out the legislative intent, and that, although the words actually used in the statute are normally the best indicator of that intent, sometimes they are not. The “plain meaning” rule is not rigid and may, as circumstances require, have to yield to other “external manifestations” or “persuasive evidence” of a contrary legislative intent. See KaczorowsM v. City of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628 (1987); Motor Vehicle Admin. v. Shrader, 324 Md. 454 , 597 A.2d 939 (1991).

As a general rule, statutes enacted as mere code revision are presumed not to contain substantive changes unless the intent to make such changes is clear. As the Court observed in Welsh v. Kuntz, 196 Md. 86, 97 , 75 A.2d 343 (1950): “[IJnasmuch as the principal function of a Code is to reorganize the statutes and state them in simpler form, changes are presumed to be for the purpose of clarity rather than for a change in meaning. Even a change in the phraseology of a statute in a codification will not as a general rule modify the law, unless the change is so radical or material that the intention of the Legislature to modify the law appears unmistakably from the language of the Code.” See also Bureau of Mines v. George’s Creek, 272 Md. 143 , 321 A.2d 748 (1974); Collier v. Connolley, 285 Md. 123 , 400 A.2d 1107 (1979); Swanson v. Wilde, 74 Md.App. 57 (1988), aff'd, 314 Md. 80 , 548 A.2d 837 . Here, in particular, there is absolutely no evidence that, in a pure Code Revision bill, the Legislature intended to abrogate the right of appeal to this Court.

Indeed, there is “persuasive evidence” that such was not the case. The Revisor’s Note to SFP, § 15-223, which was part of the bill, states that “[t]his section is new language derived without substantive change from former SF §§ ll-137(e) and 11-139.” (Emphasis added.) We would regard an abrogation of the right of appeal from the decision of the circuit court to be a substantive ⁵⁴⁶ change in the law, and thus presume from the Revisor’s Note that the Legislature did not intend such a result. This presumption is supported by the fact that the Legislature made no corresponding change in the contested case subtitle of the State Government article. Apart from the two' sections in SFP, BCA remains an agency subject to title 10, subtitle 2 of the State Government article by virtue of the provisions of that subtitle, and, as a result, parties aggrieved by judgments of the circuit court under § 10-215 remain entitled to appeal under § 10-216.

We trust that the Legislature will promptly correct the Code Revision “glitch,” but we do not regard the 1988 revision as affecting the jurisdiction of this Court to hear appeals from circuit court judgments reviewing BCA decisions. Jurisdiction Of BCA The issue here, as we indicated, is whether the arrangement between DGS and Harmans, from which Harmans’ claims arose, constitutes a lease or sale of real property. Through a combination of the definition of “procurement” in SFP, § 11 — 101(Z), the definition of “contract claim” in § 15-215(b) of that article, and the stated jurisdiction of BCA in § 15-211, it is clear that BCA has jurisdiction to decide a claim that relates to a procurement contract, including a contract for construction, but that it does not have jurisdiction to decide claims arising from the sale or leasing of real property. DGS’s position, as stated in its brief, is that “[t]he essence of the transaction was the creation and transfer of interests in real property, not the mere construction of a building.” This position is based principally on the ground lease and sublease used to implement the arrangement.

A fair consideration of the overall transaction, especially in light of the State’s own request for proposals, establishes exactly the contrary, however. The “essence of the transaction” was not the creation and transfer of interests in real property but the construction of ⁵⁴⁷ the State Highway Administration facility. The State’s request for proposals (RFP) stated explicitly: “The solicitation is based on the following concept: (1) The offeror shall design, construct and finance the facilities on property owned by the State. (2) The entire improved property shall be leased to the State Highway Administration under a lease/purchase agreement, or other creative financing mechanism as may be proposed by the offeror.” The acquisition by the State of a completed facility was the sole objective of the transaction.

Neither the State nor Harmans had any business interest in leasing and subleasing unimproved land. The State needed a building and Harmans, as a developer, was willing to build it; that was the heart and soul of the agreements between them. The fact that this complex arrangement, designed to avoid the creation of a State “debt,” utilized a lease and sublease cannot and does not change the true nature of the arrangement. Even if we were to give some higher regard to the property instruments, the fact would remain that at least part of the transaction involved the construction of the facility.

That is what the State was paying $10.9 million for, and, more important, that is the source of Harmans’ claims. The claims for unexpected site conditions and smoke vents did not arise from any lease or sublease but solely from the construction work. For these reasons, we find that the disputes were within the statutory jurisdiction of BCA. Site Conditions Harmans’ claim for an equitable adjustment based on differing site conditions is based on a clause that should have been in the contract; DOS’s defense is based on clauses that were in the contract.

The simple question is which prevails. As we indicated earlier, the traditional process for construction projects is for the State to select an arehitect/engineer to prepare detailed plans and specifications and then to select a ⁵⁴⁸ contractor to build the facility in accordance with those plans and specifications. In requesting proposals from contractors, the State will normally provide information, taken from test borings, regarding soil conditions. In that regard, SFP, § 13-218(b) requires that “a procurement contract for construction shall include a clause providing for contract modification if the condition of a site differs from the condition described in the specifications.” The particular clause that is mandated is set forth in the procurement regulations adopted by the Board of Public Works, COMAR 21.07.02.05.

It requires (1) the contractor to notify the procurement officer promptly of subsurface conditions “differing materially from those indicated in this contract,” (2) the procurement officer to investigate the conditions, and (3) if the procurement officer finds that such conditions do materially so differ and cause an increase or decrease in the contractor’s cost of performance, “an equitable adjustment shall be made and the contract modified in writing accordingly.” The very next regulation, COMAR 21.07.02.06, requires construction contracts also to contain a clause in which the contractor acknowledges that he has “satisfied himself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the State, as well as from information presented by the drawings and specifications made a part of this contract.” (Emphasis added.) Notwithstanding that both of these clauses are required by State procurement regulations to be included in every State construction contract, only the second one was included; the first was not. Before soliciting proposals for this project, the State employed Greiner Engineering Services, Inc. to develop Conceptual Plans and Specifications, which were included with the RFP. Indeed, the Special Conditions, also made part of the RFP, required the contractor to construct the facilities “sub ⁵⁴⁹ stantially in accordance with the Conceptual Plans and Technical Specifications enclosed as Exhibits I and II.” Included in the drawings prepared by Greiner were 48 foundation boring logs. The bidders were informed that actual copies of the test boring logs and information regarding tests conducted on soil samples were available for examination.

Having provided this information and having required that construction be in substantial accord with the Conceptual Design and Specifications, the RFP then backed away from making any warranties as to subsurface soil conditions. In the Special Conditions attached as Schedule C to the RFP, the State said that the inclusion of the Conceptual Design and Specifications was for “informational purposes only,” and that they were not to be taken as “construction documents and specifications” or as a representation as to the “technical sufficiency, or adequacy or safety of ... the subsoil conditions involved in the project.” In the section of the Special Provisions attached to Greiner’s drawings dealing