Engineering Management Services, Inc. v. Maryland State Highway Administration

HARRELL, J. I. State procurement contracts are subject to an exclusive, statutorily-prescribed procedure for resolving disputes. The procedure consists of four parts. 1 First, the dispute must be submitted to the agency procurement officer for attempted resolution. 2 Second, the agency head may approve, disapprove, or modify the procurement officer’s decision. 3 Third, the decision of the agency head may be appealed to the Maryland State Board of Contract Appeals (“MSBCA”). 4 ²¹⁶ Fourth, the MSBCA’s decision is subject to judicial review under the contested case provisions of the Maryland Administrative Procedure Act. 5 The present case, being the fruit of the foregoing dispute resolution process, arises from a dispute between Engineering Management Services, Inc. (“EMS”) and the Maryland State Highway Administration (“SHA”) over a contract for the removal of lead paint and the repainting of five bridges in Baltimore and Howard Counties. The dispute revolved around EMS’s claim for additional funds to comply with changes in the Federal Occupational Safety and Health Administration (“OSHA”) regulations relating to lead exposure of abatement workers which had not been taken into account expressly during the bid and award process. For purposes of EMS’s appeal to the MSBCA, the “final decision of the unit” 6 denying EMS’s claims occurred on 28 June 1999.

EMS timely appealed that final decision to the MSBCA on 27 July 1999. The SHA filed a “Motion for Summary Disposition,” asserting that EMS’s notice of claim was untimely. The MSBCA held a hearing at which EMS and SHA presented their respective positions concerning summary disposition. The MSBCA granted SHA’s motion on 9 February 2000, and dismissed EMS’s appeal, construing against EMS the 30-day “notice [to the procuring unit] of claim” provision of COMAR 21.10.04.02(A) & (C) 7 as an absolute condition precedent to the ²¹⁷ MSBCA’s jurisdiction to review the final decision of the procuring unit.

EMS timely petitioned the Circuit Court for Baltimore City for judicial review of the dismissal. The Circuit Court reversed the Board’s decision and remanded the case, ordering the MSBCA to conduct a hearing on the merits of EMS’s claim. The SHA appealed to the Court of Special Appeals. In what ultimately became a reported decision, the Court of Special Appeals reversed the Circuit Court’s judgment.

Maryland State Highway Administration v. Engineering Management Services, Inc., 147 Md.App. 132 , 807 A.2d 1131 (2002). EMS filed a petition for a writ of certiorari in this Court which we granted. Engineering v. State Highway, 371 Md. 264 , 808 A.2d 808 (2002). In so doing, however, we added a third question to the two presented in EMS’s petition.

II

The three questions for review are: “1. Did the Board err in construing the 30-day ‘notice of claim’ provision of COMAR 21.10.04.02 as an absolute condition precedent to the Board’s jurisdiction to review the final decision of a procuring unit? “2. Did the Board, using an unwritten ‘summary disposition’ procedure, err in dismissing EMS’s appeal based on an allegedly untimely “notice of claim” to the SHA’s procurement office, where the undisputed record evidence established that the SHA had actual notice of the facts and circumstances giving rise to EMS’s claim, the SHA’s denial of EMS’s claim was not based on lack of timely notice, EMS’s affidavit regarding timeliness was unrebutted, and there is no record evidence of any prejudice to the SHA by timeliness of the notice EMS provided? “3. Whether, in a contested case involving a claim against a government entity, Maryland Code (1984, 1999 Repl. ²¹⁸ Vol.), Section 10-210(6) of the State Government Article, authorizes an agency to reject the claim by summary disposition.” III.

In March 1998, the SHA issued invitations for bids for the removal of lead-based paint and the repainting of five bridges over 1-95 in Baltimore and Howard Counties. The Contract Special Provisions required compliance with the U.S. Environmental • Protection Agency (“EPA”) National Ambient Air Quality Standards. The relevant extant standard, embodied in 40 C.F.R. Part 50, included a general permissible exposure limit for workers of 150 micrograms of particulate matter per cubic meter. Contract General Provision GP-7.01 required the contractor to “comply with all Federal, State, and local laws, regulations and ordinances applicable to its activities and obligations under this contract.” General Provision GP-7.05 additionally subjected the contractor to 29 C.F.R. § 1926 , containing federal OSHA regulations, “as revised from time to time.” By letter dated 13 April 1993, the SHA notified EMS that, at bid opening, EMS was the apparent lowest competitive bidder.

The SHA issued a Notice of Award to EMS on 21 May 1993. During the time between the bid opening and the Notice of Award, OSHA added a new subsection to 29 C.F.R. § 1926 . The new regulations, 29 C.F.R. § 1926.62 , were published in the Federal Register on 4 May 1993, with an effective date of 3 June 1993. “Lead Exposure in Construction,” 58 Fed.Reg. 26,627 (4 May 1993). The pertinent new regulation imposed a maximum permissible exposure limit for lead inhalation, applicable to construction workers, of 50 micrograms per cubic meter and required protections such as protective clothing and equipment and special hygiene facilities and practices not previously mandated by other regulations. 8 ²¹⁹ On 26 July 1993, SHA issued a Notice to Proceed to EMS.

EMS began performance of the Contract on 30 September 1993. The record indicates that EMS began experiencing difficulties with equipment it had procured to perform the contract, resulting in some impatience on the SHA’s part. In a letter dated 12 January 1994, EMS attempted to explain its difficulties with the equipment in terms of attempting to meet the EPA requirements, and requested an extension of time to complete the work. On 28 March 1994, the Maryland Occupational Safety and Health Unit (MOSH) of the Division of Labor and Industry adopted for state regulatory purposes the more protective federal OSHA standard in 29 C.F.R. § 1926.62 . 9 On 22 April 1994, EMS inquired of the SHA which standard — EPA’s 150 micrograms per cubic meter or OSHA’s 50 micrograms per cubic meter — applied to the contract.

Five days later, on 27 April 1994, SHA advised EMS that the more stringent provision of the “new” OSHA regulations governed. EMS notified SHA on 2 May 1994 that it was temporarily halting work while it awaited results of tests to evaluate compliance with the new OSHA standards. On 6 March 1995, EMS asked SHA for a 180-day extension due to the impact on productivity of compliance with the OSHA regulations. EMS followed on 13 June 1995 with a written explanation of a claim for additional compensation of $1,244,564.00 to complete work on all five bridges. 10 This amount was reduced eventually to the additional cost of the three bridges on which EMS had completed work to that time.

On 11 February 1997, SHA instructed EMS not to complete the remaining work on the contract. SHA and EMS terminated the contract as to the ²²⁰ remaining two bridges on 20 November 1997, entering into a mutual termination agreement which read in pertinent part as follows: SHA and EMS agree to mutually terminate this contract based upon the following conditions: EMS agrees that the claim and extensions for the amount of $764,036.00 dated February 26, 1997 (currently at Chief Engineer’s level) is EMS’ final claim on this contract. It is understood that EMS does not waive any rights of appeal of this claim. It is the intent of the parties to delete the remainder of the work under the contract without cost or claim to either party.

SHA agrees not to pursue termination for default. In accordance with normal project close out, SHA will pay EMS any and all retention due. It is understood that SHA has not agreed to make any payments under said claim before the Chief Engineer, but will consider the claim submitted. This is a mutual termination and release of claims with the exception of those mentioned above.

The signatures below indicate confirmation of this agreement, (emphasis added) The SHA procurement officer denied EMS’s claims for additional compensation on 28 June 1999. No mention was made in the decision of the procurement officer regarding the timeliness (or not) of EMS’s notice of claim for the $764,036.00. After EMS appealed to the MSBCA, the SHA moved for summary disposition of EMS’s claim, arguing, for the first time, 11 that EMS’s notice of claim to the SHA was untimely under COMAR 21.10.04.02, requiring that a contractor “shall file a written notice of a claim ... with the appropriate ²²¹ procurement officer within thirty days after the basis for the claim is known or should have been known, whichever is earlier.” 12 According to the SHA, the first notice of claim by EMS to the SHA’s procurement officer was a letter dated 13 June 1995; however, timely notice was due by the end of October 1993, according to its calculation. 13 In response, EMS asserted that three of its letters to the SHA during contract performance — dated 12 January 1994, 6 March 1995, and 13 June 1995 — each served to put the SHA on timely written notice of its claim that EMS required more time and money to perform the contract. The MSBCA, after observing that it had been recognizing, considering, and granting motions for summary disposition for seventeen years, based on an unwritten summary disposition procedure, granted the SHA’s motion for summary disposi ²²² tion. 14 After making fifteen findings of fact (presumably gleaned from the documentary record before it), the MSBCA selected its own date for when notice of claim was due, one which differed from those advanced by the parties.

The MSBCA reasoned that EMS knew or should have known of the basis for its claim by the end of May 1994. The MSBCA then held that, “[s]ince EMS failed to submit its notice of claim in a timely manner, the Board lacks jurisdiction and the appeal must be dismissed.” The MSBCA justified this conclusion as follows: The Board’s subject matter jurisdiction is limited to that which has been specifically conferred upon it by the legislature. Cherry Hill Constr., Inc., MSBCA No.2056, 5 MSBCA ¶ 459 (March19,1999) at p. 26 citing Univ. of Maryland v. MFE Inc./NCP Architects, Inc., 345 Md. 86 , 691 A.2d 676 (1997). The Board only has jurisdiction over a claim that is timely filed under and otherwise meets the requirements of COMAR 21.10.04, as that regulation implements the statutory provisions regarding final agency action in contract claims for construction contracts and appeal to the Board as set forth in §§ 15-211, 15-215, 15-217 and 15-219 of the State Finance and Procurement Article.

Cherry Hill, at page 26. In reviewing the pertinent statutes and regulations relating to timeliness, the Board held that “[cjontract claims for which notice was not submitted during the regulatory time period are to be dismissed for lack of subject matter jurisdiction without consideration of prejudice.” Cherry Hill, at pages 24-25. The State Finance and Procurement Article (as it was in effect in 1993) provides that a contract claim shall be submitted in the time required under regulations adopted by the primary procurement unit responsible for the pro ²²³ curement. Md. State Fin. and Proc.Code Ann. § 15-217(b)(1988).

Pursuant to that statutory authority, the Board of Public Works promulgated regulations in COMAR concerning the filing of claims by contractors. The pertinent provision, in effect in 1993, is as follows: COMAR 21.10.04.02. Filing of Claim by Contractor: A. Unless a lesser period is prescribed by law or by contract, a Contractor shall file a written notice of a claim relating to a contact with the appropriate procurement officer within thirty days after the basis for the claim is known or should have been known, whichever is earlier. B. [omitted] C. A notice of claim or a claim that is not filed within the time prescribed in Regulation .02 of this chapter shall be dismissed.

D. Each procurement contract shall provide notice of the time requirements of this regulation. In accordance with COMAR 21.10.04.02(D), supra, the Contract provides that a notice of claim be filed within a thirty (30) day time frame. Specifically, General Provision 5.14(A) of the Contact provides: The Contractor shall file a written notice of claim for extension of time, equitable adjustment, extra compensation, damages, or any other matter (whether under or relating to this Contract) with the procurement officer within 30 days after the basis for the claim is known or should have been known, whichever is earlier. General Provision 5.14(d) of the Contract further advises that a “notice of claim or a claim that is not filled within the prescribed time shall be dismissed.” From the perspective of the MSBCA, strict compliance with COMAR 21.10.04.02 — at the procurement officer level — was a condition precedent to the establishment of a claim, and an absolute jurisdictional prerequisite to any subsequent appellate jurisdiction of the MSBCA. ²²⁴ The Circuit Court for Baltimore City reversed the MSBCA action.

The Court questioned, but did not decide, the propriety of summary disposition without written procedures. The Court instead held that, regardless of whether the MSBCA could proceed without formal rules, the issue of timeliness, defined by the regulation in question as when a contractor knew or should have known of its claim, was a question of fact. As such, the Circuit Court reasoned that the MSBCA could not render a summary disposition without a fair hearing on the merits of the claim, including its timeliness. The Circuit Court, in turn, was reversed by the Court of Special Appeals.

The intermediate appellate court held that the filing of written notice within 30 days of discovery was a mandatory requirement, and the MSBCA therefore had no discretion to entertain EMS’s appeal once it determined that the appeal was based on an untimely notice of claim.

IV

We shall consider the questions presented in reverse order. At bottom, this case involves interpretation of statutes and regulations. In Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 549-50 , 814 A.2d 469, 490 (2002) citing Mazor v. Department of Correction, 279 Md. 355, 360-61 , 369 A.2d 82, 86-87 (1977) we reiterated the six principal tenets of statutory interpretation: [1] The cardinal rule of construction of a statute is to ascertain and carry out the real intention of the Legislature. [2] The primary source from which we glean this intention is the language of the statute itself. [3] In construing a statute, we accord the words their ordinary and natural signification. [4] If reasonably possible, a statute is to be read so that no word, phrase, clause, or sentence is rendered surplusage or meaningless. [5] Similarly, wherever possible an interpretation should be given to statutory language which will not lead to absurd consequences. ²²⁵ [6] Moreover, if the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature. (Citations omitted).

There is no doubt that the MSBCA is endowed fundamentally with the power to provide for the disposition of contested cases by summary disposition in appropriate circumstances. Whether it has provided properly for the exercise of that power and articulated the circumstances in which that disposition might be appropriate are at the core of this case. Md. Code (1974, 2001 Repl.Vol.), State Finance and Procurement Art., § 15-216(b) states: (b) Proceedings of Appeals Board. — The Appeals Board shall conduct its proceedings in accordance with Title 10, subtitle 2 of the State Government Article. Maryland Code (1974, 1999 Repl Vol.), State Government Article, § 10-210 states: Unless otherwise precluded by law, an agency or the Office may dispose of a contested case by: (1) stipulation; (2) settlement; (3) consent order; (4) default; (5) withdrawal; (6) summary disposition; or (7) dismissal. 15 ²²⁶ While acknowledging that § 10-210 allows for summary disposition, Petitioner argues that such disposition is “otherwise precluded by law” and cannot be utilized by an agency against a citizen due to a procedural conflict between fundamental concepts of administrative law and those of summary judgment jurisprudence.

The Petitioner points out that: Maryland Rule 2-501(e) provides that a trial court may grant summary judgement when there is “no genuine dispute as to any material fact” and the moving party is entitled to judgment “as a matter of law.” Amplifying on this, this Court has held that the trial court may only make rulings as a matter of law; it should “ ‘resolv[e] no disputed issues of fact.’ ” Put another way, “ ‘[i]n considering a motion for summary judgment the Court does not attempt to decide any issue of fact or credibility, but only whether such issues exist ... ’ ” All inferences must be resolved against the party moving for summary judgment. This deference to the opponent of a motion for summary judgment continues at the appellate stage, (citations omitted). This summary of the civil law of summary judgment applicable in our state’s Article IV 16 courts is essentially correct. Petitioner continues, however, that under the tenets of administrative law: [a]n agency’s decision is “reviewed in the light most favorable to the agency,” because such decisions carry “a presumption of validity.” Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119, 1124 (1978).

Accordingly, judicial review of the agency decision is limited to determining “whether a reasoning mind could have reached the factual conclusions reached by the agency.” Liberty Nursing Center, Inc. v. Dep’t of Health and Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941, 946 (1993)(citing Supervisor v. ²²⁷ Asbury Methodist Home, 313 Md. 614, 616 , 547 A.2d 190, 195 (1988)). Accord Resetar v. State Bd. of Educ., 284 Md. 537 , 399 A.2d 225 (1979)(reviewing court will affirm the administrative action when it concludes that a reasoning mind reasonably could have reached the factual conclusions which the agency has reached). Further, “ ‘where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.’ ” Courtney v. Bd. of Trustees of Maryland State Ret. Systems, 285 Md. 356, 362 , 402 A.2d 885, 889 (1979)(quoting Bulluck v. Pelham Wood Apts., supra) (citation omitted).

See also A.H. Smith Sand & Gravel Co. v. Dep’t of Water Resources, 270 Md. 652 , 313 A.2d 820 (1974)(reviewing court may not substitute its judgment for the expertise of the agency in reviewing the agency’s decision.). This is also a correct statement of law, as far as it goes. Petitioner argues that where the agency is seeking summary judgment, which it equates with summary disposition within the meaning of § 10-210(6), deference to the agency decision or action is in conflict with the tenet of summary judgment jurisprudence that reasonable inferences be drawn in favor of the non-moving party [contractor], and that therefore summary judgment is an inappropriate procedure, as it would not be reviewable on appeal in effect. A careful reading of Petitioner’s argument, however, reveals that Petitioner is mixing the proverbial apples and oranges on this record and the relevant statutes and regulations.

Petitioner’s argument fails to distinguish the various forms of judicial review of administrative decisions under the Administrative Procedure Act (APA). 17 In the APA, Md.Code ²²⁸ (1974, 1999 RepLVoL), State Government Art., § 10-222(h) sets forth six grounds upon which a court can reverse or modify an agency decision if any substantial right of a petitioner has been prejudiced. 18 Section 10-222(h) states: In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. It is true, as Petitioner sets forth, that an agency’s findings of fact and inferences made in the course of rendering findings of fact are given deferential treatment under “substantial evidence” review [APA, § 10-222(h)(3)(v), supra]. Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380-81 (1999); Travers v. Baltimore Police Dep’t, 115 Md.App. 395, 420 , 693 A.2d 378, 390 (1997). Under summary judgment jurisprudence, however, it is not a procedural vehicle to be used to determine factual disputes, but rather to determine whether there is a dispute over a material fact or facts that should be tried.

Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144-45 , 642 A.2d 219, 224 (1994); Di Grazia v. County Executive, 288 Md. 437, 445 , 418 A.2d 1191, 1196 (1980). Maryland Rule 2-501(e) instructs that ²²⁹ summary judgment is appropriate “where there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Whether summary judgment is properly granted as a matter of law is a question of law. 19 The standard for appellate review of a summary judgment is whether it is “legally correct.” Sheets v. Brethren Mut. Ins.

Co., 342 Md. 634, 638-39 , 679 A.2d 540, 542 (1996); Heat & Power Corp. v. Air Prod. & Chemicals, Inc., 320 Md. 584, 591-92 , 578 A.2d 1202, 1206 (1990). This is the same standard of review we apply to the question of the legal correctness of an administrative agency’s decision. See Banks, 354 Md. at 67-69 , 729 A.2d at 380-81 . As a result, there is no significant conflict between the deference given to factual determinations made by an agency and the principles of summary judgment.

Whether the same may be said for summary disposition practice at the administrative agency level will be discussed infra. In any event, we shall not answer Question 3 because of the reasons stated in our following analysis of Question 2. Y. Petitioner next argues, again applying principles of summary judgment jurisprudence, that the MSBCA erred in dismissing EMS’s claim where there is documentary evidence showing that there were disputes of material fact, i.e., what was the trigger date for tolling the notice of claim period and whether EMS’s claim was timely. Were this case to be scrutinized as a summary judgment action at law, we would agree.

As we observed, supra, the purpose of summary judgment is to determine whether there are facts in dispute that must be resolved through a more formal dispute resolution process, a trial on the merits. As noted, it is not the ²³⁰ purpose of summary judgment to resolve issues of material fact. Despite this principle, the MSBCA made fifteen findings of fact, including a determination of when EMS’s notice should have been given, a determination which differed from that advanced by either of the parties. Furthermore, because review of the grant of summary judgment is de novo, there would exist potentially the question of whether the State is estopped or otherwise waived the notice requirement by its entry into the 20 November 1997 Mutual Termination Agreement. 20 Finally, the regulation in question, COMAR 21.10.04.02, requires that “a contractor shall file a written notice of a claim relating to a contract with the appropriate procurement officer within 30 days after the basis for the claim is known or should have been known, whichever is earlier.” We consistently have held that “summary judgment generally is inappropriate when matters — such as knowledge, intent or motive — that ordinarily are reserved for resolution by the fact-finder are essential elements of the plaintiffs case or defense.” Brown v. Dermer, 357 Md. 344, 355-56 , 744 A.2d 47, 53 (2000).

Were the present case controlled by our summary judgment jurisprudence, this certainly would appear to be such a case where summary judgment would be inappropriate. 21 As a practical matter, however, this question, as well" as most of what we thus far have said in this opinion in response to Petitioner’s arguments, is ultimately not disposi ²³¹ five of this case, though it may be potentially relevant upon remand. The administrative action under review sub judice was decided ostensibly under the grant to the MSBCA of the power to enter a summary disposition, not summary judgment, in a contested case. APA, § 10-210, does not describe the modality of action as summary judgment, nor does the MSBCA’s decision in the present case, except in a footnote. 22 The question thus becomes whether the MSBCA properly implemented the ability to grant summary disposition, and, if so, whether it properly granted it in this case. A more puzzling question is how it is that we are supposed to make that determination.

APA, § 10-206(b), states that “[e]ach agency may adopt regulations to govern procedures under this subtitle and practice before the agency in contested cases.” The enabling statute for the MSBCA is a bit more direct and specific. Md.Code (1974, 2002 Repl.Vol.), State Finance and Procurement Art., § 15-210 states: In accordance with Title 10, Subtitle 1 of the State Government Article [the APA], the Appeals Board shall adopt regulations that provide for informal, expeditious, and inexpensive resolution of appeals before the Appeals Board. (Emphasis added). 23 We have not found, nor has either party directed us to, any regulation of the MSBCA that provides for ²³² summary disposition procedures. 24 Where an agency decision flows from an unlawful procedure, that decision is subject to reversal or modification by the courts. APA, § 10 — 222(h)(8)(iii). 25 We have recognized this principal of our State’s administrative law as being similar to the federal Accardi doctrine. 26 MTA v. King, 369 Md. 274, 286-87 , 799 A.2d 1246, 1252-53 (2002).

See Pollock v. Patuxent Institution Bd. of Review, 374 Md. 463 , 823 A.2d 626 (2003)(expressly adopting for purposes of Maryland administrative law a version of the Accardi doctrine). Contrary to the conduct of the MSBCA, procedural rules must be promulgated by formal rulemaking and cannot be made in ad hoc fashion through adjudication. Under § 10-101(g)(l), “the Maryland APA does not follow the federal APA’s exceptions to the rulemaking procedures [ 5 U.S.C. § 553 (b)(3)(A) & (B)], and indeed expressly rejects most of the federal APA exceptions. Under the Maryland APA, an agency’s organizational rules, procedural rules, interpretive rules and statements of ²³³ policy all must go through the same procedures as required for legislative rules.” 27 While an agency has some discretion with regard to policy questions whether to proceed by regulation or by decisional rule, Maryland Ass’n of Health Maint.

Org. v. Health Serv. Cost Review Comm’n, 356 Md. 581, 600 , 741 A.2d 483, 493 (1999), in Maryland, this discretion does not exist as to procedural matters. 28 As we pointed out in Calvert County v. Howlin, 364 Md. 301, 322 , 772 A.2d 1209, 1221 (2001), in a non-APA context: 29 ²³⁴ Rules for the transaction of business of public agencies are intended to be normative principles formally adopted by the agency in written form, in accordance with whatever procedural requirements may apply, and, upon request, made available in advance to persons dealing with the agency. Only then can there be some assurance against arbitrary and capricious conduct on the part of the agency. Here, the MSBCA was directed by statute that it “shall adopt regulations,” yet it failed to do so with regard to summary disposition.

In Tranen v. Aziz, 59 Md.App. 528, 534-35 , 476 A.2d 1170, 1173 (1984), the Court of Special Appeals correctly observed that: [t]he term “shall” is presumed mandatory on the parties, denoting “an imperative obligation inconsistent with the exercise of discretion.” Johnson v. State, 282 Md. 314, 321 , 384 A.2d 709 (1978) citing Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169 , 338 A.2d 248 (1975). Accord In re Dewayne H., 290 Md. 401, 404 , 430 A.2d 76 (1981); In re James S., 286 Md. 702, 706-08 , 410 A.2d 586 (1980) quoting State v. Hicks, 285 Md. 310, 334 , 403 A.2d 356 (1979); People’s Counsel v. Pub. Serv.

Comm’n, 52 Md.App. 715, 719-20, 451 A.2d 945 (1982). “Shall” and “must” have been employed synonymously to foreclose discretion. Resnick v. Board of Elections, 244 Md. 55, 62 , 222 A.2d 385 (1966). The term “must” imposes a positive, absolute duty, see Calvert County Com’rs v. Gibson, 36 Md. 229, 236-37 (1872), and has been defined as “compulsion or obligation” or “requirement or prerequisite.” American Heritage Dictionary, 865 (1976). 30 ²³⁵ As a result, the MSBCA violated the procedures set forth in its enabling statute when it proceeded to grant a summary disposition in the present case in the absence of adopted rules of procedure. The SHA argues, and the Court of Special Appeals agreed, that the issue of the MSBCA’s failure to promulgate rules was not preserved for review as EMS failed to raise the issue during the proceedings before the MSBCA.

Judicial review of administrative decisions generally is limited to the issues raised before the agency. Mayor and Council of Rockville v. Woodmont Country Club, 348 Md. 572, 582, n. 3 , 705 A.2d 301, 305, n. 3 (1998)(citing Ins. Comm’r of the State of Maryland v. Equitable Life Assurance. Soc’y. of the United States, 339 Md. 596, 634 , 664 A.2d 862, 881 (1995)).

We reach this issue, however, not because EMS raised it on appeal, but rather because it is an integral, and thus unavoidable, component of our determination of the properly raised issue of whether the MSBCA’s grant of summary disposition was appropriate in this case. This is because the MSBCA’s failure to adopt pertinent procedural rules in the case sub judice interferes with the ability of the courts to perform their constitutional function of review. Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 500-503 , 331 A.2d 55, 65-66 (1975).

As we pointed out, supra, APA,