Maryland Transportation Authority Police Lodge 34 v. Maryland Transportation Authority

HOLLANDER, J. This appeal involves a dispute between the Maryland Transportation Authority Police Lodge # 34 of the Fraternal Order ¹³² of Police, Inc. (“FOP” or the “Lodge”), appellant/cross-appel-lee, and the Maryland Transportation Authority (“MdTA” or the “Authority”), appellee/cross-appellant. At issue is a “Memorandum” signed in February 2006 by Trent M. Kittle-man, then the Executive Secretary of the MdTA, and Cpl. John Zagraiek, the President of the Lodge (the “Agreement”). The Agreement committed the MdTA to fund a “Personal Patrol Vehicle program” (sometimes referred to as the “PPV program” or “take-home vehicle program”), whereby each officer of the MdTA Police Force was to receive a “personally-assigned patrol vehicle” for the officer’s official use and for commuting.

Pursuant to the Agreement, the FOP was obligated to request the withdrawal of proposed State legislation authorizing the MdTA and its police officers to engage in collective bargaining. In 2007, the MdTA informed the Lodge that it would not proceed with the PPV program. 1 In response, the Lodge and eleven individual MdTA police officers, appellants, 2 filed suit in the Circuit Court for Baltimore County against the MdTA, the State of Maryland, the “Maryland Transportation Authority Board,” 3 the MdTA’s Executive Secretary, its Chairman, 4 and ¹³³ nine individual current and former MdTA members, 5 seeking relief on the basis of breach of contract and promissory estoppel. The MdTA moved to dismiss the Lodge’s Complaint. It asserted that the Agreement was not a valid contract, nor could it be enforced by promissory estoppel.

After reviewing documentary submissions from the parties, the circuit court granted summary judgment in favor of the MdTA. It also denied as moot a motion by the MdTA to disqualify appellants’ counsel due to alleged ethics violations. The court subsequently denied the Lodge’s motion for reconsideration. This appeal followed.

The Lodge presents four questions, which we have reformulated as a single inquiry: Did the circuit court err in determining that the Agreement was legally unenforceable and on that basis granting summary judgment to the Authority? 6 The MdTA has noted a conditional cross-appeal, pertaining to the denial of its motion to disqualify appellants’ counsel. It asks: ¹³⁴ If the Court remands this case (which it should not), is it appropriate to disqualify the Lodge’s counsel, and exclude certain evidence, due to ethical violations relating to the retention of the former Maryland Transportation Authority police chief as a consultant to the Lodge in this litigation? For the reasons that follow, we shall affirm in part and reverse in part as to the grant of summary judgment. In addition, we shall vacate the denial of the Authority’s motion to disqualify, and remand to the circuit court for consideration on the merits.

I. Background of the MdTA Although the MdTA has been featured in a handful of prior reported cases, 7 we have not uncovered any case that has comprehensively described the agency and its functions. In the context of this case, an overview of the agency, and what appellants describe as its “uniquely independent budgetary authority,” will be helpful to an analysis of the issues. 8 The MdTA is an agency created by statute. 9 See Md.Code (2008 Repl.Vol., 2009 Supp.), § 4-201 of the Transportation ¹³⁵ Article (“Transp.”). 10 It was established by the General Assembly in a 1970 enactment, effective July 1, 1971. See 1970 Md. Laws, ch. 526. See also Bugg v. MdTA, 31 Md.App. 622, 632 , 358 A.2d 562 , cert, denied, 278 Md. 717 (1976), cert, denied, 429 U.S. 1082 , 97 S.Ct. 1088 , 51 L.Ed.2d 529 (1977). “Acting on behalf of the Department [of Transportation],” the Authority is responsible for “the supervision, financing, construction, operation, maintenance, and repair of transportation facilities projects,” Transp. § 4-204(a), which principally consist of the major toll-producing bridges, tunnels, and thoroughfares of the State.

See Transp. § 4-101(h) (defining “transportation facilities projects”). 11 Although the enabling act for the Authority is codified in the Transportation Article, and, as noted, the MdTA acts “on behalf of’ the Department of Transportation (“DOT” or the “Department”), the MdTA is not included as a unit of the DOT. See Transp. § 2-107 (enumerating units of the DOT, without listing the MdTA); Transp. § 4-201 (establishing the MdTA, without stating that it is “in the Department”). Rath ¹³⁶ er, the MdTA is an independent agency. But see MdTA v. King, 369 Md. 274, 276 , 799 A.2d 1246 (2002) (without citation of authority, describing MdTA as “a unit” of the Department of Transportation).

It is comprised of the Secretary of Transportation, sitting ex officio as its Chairman, and eight members appointed by the Governor, with the consent of the Senate, to four-year terms. See Transp. § 4-202. 12 As noted, the Agreement was signed on behalf of the MdTA by its “Executive Secretary.” The position of Executive Secretary is not established by statute or regulation, but is referred to in various MdTA regulations. It is clear from the context of this case and the various regulations that refer to the position, see, e.g., Code of Maryland Regulations (“CO-MAR”) 11.02.01.02B(2)(f) (Supp. No. 30), that the Executive Secretary is the chief administrator of the Authority. MdTA finances its transportation facilities projects through the issuance of bonds.

See Transp. §§ 4r-301 to 4-311. The bonds are secured by trust agreements, Transp. § 4-311(a)(l), which “may pledge or assign all or any part of the revenues of the Authority or of any transportation facilities project----” Transp. § 4-311(a)(2). See Transp. § 4-315 (all revenue bond proceeds and toll revenues are trust funds). In turn, the Authority has the power to establish and collect “rentals, rates, fees, tolls, and other charges and revenues” for the use of its transportation facilities projects.

Transp. § 4-312(a)(2). Aside from specific statutory restrictions that we need not catalog, “the rentals, rates, fees, tolls, and other charges and revenues are not subject to supervision or regulation by any instrumentality, agency, or unit of this State or any of its political subdivisions.” Transp. § 4 — 312(c)(1). These revenues are applied as specified in the trust agreements. Trans ¹³⁷ portation § 4-313 establishes a “Transportation Authority Fund” into which all revenues derived from transportation facilities projects are to be deposited, “except to the extent that they are pledged under an applicable trust agreement ....” To the extent permitted by the trust agreements, funds that are available after providing for the Authority’s debt service may be transferred to the DOT’s general “Transportation Trust Fund to be used as appropriated by the General Assembly....” Transp. § 4-313(c). 13 In Wyatt v. State Roads Commission, 175 Md. 258 , 1 A.2d 619 (1938), the Court of Appeals reviewed the similar, predecessor scheme for financing, construction, and management of the State’s toll infrastructure under the aegis of the State Roads Commission (the “Commission”).

Like the MdTA today, the Commission was entrusted with funding the State’s major transportation facilities by issuing bonds, and then charging tolls for the public’s use of the facilities so as to “provide a fund sufficient ... to pay the cost of maintenance ... and the bonds and interest as they should become due.” Id. at 262 , 1 A.2d 619 . The Court observed that the statute contained, “accordingly, no provision for resort to taxation for any outlay on the projects____” Id. The question before the Court was whether this program of “self-paying construction” passed constitutional muster. Id. at 265 , 1 A.2d 619 .

The Court determined that it did. ¹³⁸ In particular, the Court held that the scheme did not amount to “contracting a debt without annual taxation to meet it,” prohibited by Article III, § 34 of the State Constitution. Id. at 264, 1 A.2d 619 . It reasoned that the bonds were to be paid entirely out of toll revenues, and the bonds at issue did not establish “any obligation on the State to repay principal or interest”; rather, the bondholders’ only recourse was (and remains today, see Transp. §§ 4r-316 & 4-319) against the revenues of the agency, and not the general fisc of the State. Wyatt, 175 Md. at 265 , 1 A.2d 619 .

Because there was “no contract to add to the burden of the taxpayers of the State present or future, none to pay anything out of taxes, and no debt incurred for which taxes could be levied,” the agency’s financial obligations were not “debts” of the State, in the constitutional sense. Id. Nor did the Commission’s plenary authority over collection and disbursement of toll funds violate Sections 2 and 3 of Article VI of the State Constitution, which respectively vest in the Comptroller the “general superintendence of the fiscal affairs of the State,” and direct that the Treasurer “shall receive and keep the moneys of the State.” See Wyatt, 175 Md. at 269 , 1 A.2d 619 . The Court explained: “The fund from tolls will be one coming into existence only for the special, peculiar, application to the bonds, and is completely appropriated to that purpose____The State will have no right to the fund, and it would be a misapplication to put it into the ordinary channels for state revenues.” Id.

Thereafter, the Attorney General opined that “[t]he General Assembly may enact legislation requiring the Authority to present its proposed budget and other financial documents to the General Assembly for review.” 70 Op. Att’y Gen. 229, 229 (1985). But, the Attorney General determined that the Legislature may not subject the Authority’s revenues to the appropriations process. 14 Id. See also Md.Code (2009 Repl.Vol.), ¹³⁹ § 7-110(b)(2) of the State Finance & Procurement Article (“S.F.P.”) (requiring budget books to include, “for information,” a summary of MdTA’s capital and operating expenditures). 15 In furtherance of its independent management of the State’s toll infrastructure, the MdTA is statutorily granted the power to “acquire, hold, and dispose of property.” Transp. § 4-205(b).

Notably, in the context of this case, with limitations not relevant here, the Authority “may make any contracts and agreements necessary or incidental to the exercise of its powers and performance of its duties.” Transp. § 4-205(c)(l). Moreover, the MdTA is authorized to “employ and fix the compensation of attorneys, consulting engineers, accountants, construction and financial experts, superintendents, managers, and any other agents and employees that it considers necessary to exercise its powers and perform its duties.” Transp. § 4-205(d)(l). The expense of employing such persons “may be paid only from revenues or from the proceeds of revenue bonds issued by the Authority.” Transp. § 4-205(d)(2). In a 1988 opinion, the Attorney General concluded that these statutory provisions granted the MdTA “independent authority to hire and set the compensation of [its] employees,” in contrast to the DOT, which was subject (in varying degrees) to the requirements of the Merit System Law (then codified in Article 64A of the Annotated Code).

See 73 Op. Att’y Gen. 285,285 (1988). 16 , 17 ¹⁴¹ The MdTA also has the power to adopt rules and regulations. Transp. § 4 — 205(f). And, it enjoys a “catch-all” grant of authority, empowering it to “do anything else necessary or convenient to carry out the powers granted” to it by statute.

Transp. § 4-205(g). Among the MdTA’s employees are the members of the Maryland Transportation Authority Police Force (“MdTAP”). Transp. § 4-208. The commanding officer of the MdTAP is its Chief.

Forbidden Meeting Room Transp. § 4-208.1. The lineage of the [MdTAP] can be traced back to several police forces that were created beginning in the middle of the 20th century to patrol various transportation facilities in Maryland — including the State Roads Commission Bridge Guards, the Harbor Tunnel Special Police, the Maryland Port Authority Special Police, the State Aviation Administration Police, and others. By 1998, these various law enforcement agencies had all been absorbed into what is now known as the Maryland Transportation Authority Police. 92 Op. Att’y Gen. 51, 51 (2007) (citation omitted).

By statute, the MdTAP is charged with providing police services to the Authority, the Maryland Aviation Administration, and the Maryland Port Administration. Transp. § 4-208(e). MdTAP officers have “all the powers granted to a peace officer and a police officer of this State.” Transp. § 4-208(a)(2). They may exercise those powers “on property owned, leased, or operated by or under the control of the [MdTA], Maryland Aviation Administration, and Maryland Port Administration,” Transp. § 4-208(b)(l), and, under some circumstances, "within 500 feet of such property.

Transp. § 4-208(b)(2)-(3). Ordinarily, MdTAP officers may not exercise police powers on any other property. See Transp. § 4-208(b)(4). However, there is an exception authorizing the use of police power on other property, if “[o]rdered to do so by the ¹⁴² Governor.” Transp. § 4 — 208(b)(4)(iii).

In 2004, the Governor issued such an order (which remains in effect), authorizing the MdTAP to exercise police power “to enhance the protection and safety of all publicly owned, commercial, and/or common carrier transportation assets throughout the State.” COMAR 01.01.2004.28B (Supp. No. 28). In 2007, the Attorney General interpreted this expanded grant of jurisdiction to include authorization for MdTAP officers to “be assigned to patrol MARC trains and stations, including Amtrak stations in Maryland,” in concert with Amtrak police and other law enforcement agencies with overlapping jurisdiction. 92 Op. Att’y Gen. at 57. The MdTA is responsible for instituting “rules and regulations governing the operation and conduct of the Maryland Transportation Authority Police Force and of Maryland Transportation Authority police officers.” Transp. § 4-208(d).

II

Factual and Procedural Background The Lodge instituted suit on June 29, 2007. As noted, the complaint contained two counts: breach of contract and promissory estoppel. Our recitation of the facts is drawn primarily from the plaintiffs’ complaint, as amended. 18 According to the complaint, for “approximately three years” the Lodge had been “seeking collective bargaining rights by seeking to introduce legislation providing for collective bargaining.” Through its efforts, the FOP obtained the introduction of collective bargaining legislation during the 2006 session of the Maryland General Assembly. 19 The Lodge had also “conducted extensive research into offering each Maryland ¹⁴³ Transportation Authority Police Officer a personally assigned take home patrol vehicle, to induce recruitment and retention of police officers.” On February 27, 2006, during the legislative session, Trent M. Kittleman, then the Executive Secretary of the Authority, met with then-MdTAP Chief Gary L. McLhinney; MdTA Deputy Executive Secretary Dan McMullen; MdTAP Cpl. John Zagraiek, the President of the Lodge; and MdTAP Lt.

Kevin Anderson, the Vice-President of the Lodge. At that meeting, Kittleman and Zagraiek signed the Agreement, which took the form of a one-page “memorandum” from Kittleman to Zagraiek, with the subject line, “Personal Patrol Vehicle Program/Collective Bargaining Legislation.” The Agreement, a copy of which was attached as an exhibit to the Lodge’s complaint, stated: This afternoon, I met with Cpl. John Zagraiek and Lt. Kevin Anderson, along with Chief Gary Mcllhinney [sic] and Dan McMullen.

At this meeting, I made a proposal to fund the “Personal Patrol Vehicle Program” (“PPV”) as an alternative to the Collective Bargaining Bills that are now before the House and Senate. Short Background One of the reasons the MdTA Police support collective bargaining is for recruiting purposes. Since most other police forces have collective bargaining, MdTAP considers not having collective bargaining as a potential disadvantage in the competition for the best recruits. Another significant recruitment tool MdTAP has requested is the ability to offer each MdTA police officer a personally assigned patrol vehicle.

During the recent budget process, Chief Mcllhinney [sic] submitted a thoroughly documented request for a three-year phase-in of this program. We were unable to accommodate the request at that time. Agreement In essence, the proposal is that the Authority will include the PPV in the next three fiscal year budgets, and in exchange the F.O.P. Lodge # 34 will ask the sponsors to ¹⁴⁴ withdraw the collective bargaining bills and will agree not to support collective bargaining legislation in either of the following two years. Below are the specifics of the agreement: ► Cpl.

Zagraiek, or his designee, on behalf of the F.O.P., will request Del. DeBoy to withdraw HB 1151, his collective bargaining bill, before tomorrow’s hearing. ► Cpl. Zagraiek, or his designee, on behalf of the F.O.P., will ask Sen. Gianetti [sic] to withdraw SB 722, his companion collective bargaining bill. ► Provided the bills are withdrawn, and no collective bargaining legislation covering the MdTAP is passed [in] this session, the Authority will add funds to the FY '07 budget for the first phase of the proposed PPV program, in [an] amount reasonably close to the $3.82 million outlined in the current proposal. ► In each of the next two fiscal years, the Authority will continue to fund the three-year phase-in of the PPV, provided that no collective bargaining legislation covering the MdTAP is passed. ► The PPV program will be essentially the program outlined in the notebook prepared by the MdTAP, in conformance with all laws and regulations.

Following the signing of the Agreement, the House and Senate bills providing for collective bargaining rights for MdTAP officers were withdrawn by their sponsors, at the Lodge’s request. 20 According to the complaint, the Authority held a meeting in April 2006, at which its “members unanimously approved the plan to implement, over a three-year period, a police vehicle take-home program for sworn Authority police personnel in exchange for the withdrawal of a bill concerning collective bargaining for sworn Authority Police personnel.” The complaint further alleged that, immediately after the signing of ¹⁴⁵ the Agreement, the MdTAP began to include “ ‘Take Home Vehicles’ on its recruitment pamphlet and recruitment website by listing it first under ‘Benefits Package.’ ” In approximately June 2006, the Authority ordered twenty-five vehicles for the PPV program; it took delivery of all twenty-five vehicles as of May 2007. On January 17, 2007, Martin J. O’Malley succeeded Robert L. Ehrlich, Jr. as Governor of Maryland. Governor O’Malley appointed John D. Porcari as his Secretary of Transportation, and Porcari assumed concomitantly the position of Chairman of the MdTA. In the early weeks of the O’Malley administra,tion, MdTA Executive Secretary Kittleman and MdTAP Chief McLhinney were succeeded, respectively, by Ronald L. Free-land and Marcus L. Brown.

Governor O’Malley also appointed three new members to the Authority. 21 According to the complaint, on May 16, 2007, Secretary Porcari announced his intention “not to move forward with the Personal Patrol Vehicle program,” despite the Agreement. At its June 28, 2007 meeting, the Authority voted not to proceed with implementation of the PPV program. Appellants filed suit the next day. As to the breach of contract claim, the Lodge asserted that the MdTA “offered to implement and fund the Personal Patrol Vehicle program in exchange for Plaintiff’s withdrawal of collective bargaining bills and forbearance from supporting collective bargaining----” Further, appellants averred that the Lodge “accepted the Defendants’ offer when Sergeant John Zagraiek signed the Memorandum dated February 27, 2006, in his official capacity as the President of the FOP.

Plaintiffs’ agreement to forego collective bargaining rights was consideration for the Defendants’ promise to implement and fund the Personal Patrol Vehicle program.” Because Kittle-man and Zagraiek both signed the Agreement, and the Authority “unanimously voted on April 20, 2006, to approve the ¹⁴⁶ Personal Patrol Vehicle program in exchange for the withdrawal of bills concerning collective bargaining,” the Lodge contended that the MdTA “had a duty to comply with the [AJgreement....” According to the Lodge, the MdTA “breached the agreement on May 16, 2007, when Porcari ... publicly announced ... the intention of the [MdTA] to suspend further performance of the agreement by halting the [PPV] program.” Moreover, the Lodge noted that the MdTA “did in fact begin performance of the [A]greement by ordering twenty-five of the vehicles,” although “the twenty-five vehicles previously delivered have not been available as take home vehicles.” The Lodge asked the court to “enforce the [A]greement and order the funding and implementation of the Personal Patrol Vehicle program for three years following the date the agreement was signed and then accepted by the [MdTA] on April 20, 2006.” As to the claim of promissory estoppel, the Lodge contended that, by entering into the Agreement, the MdTA “made a clear and definite promise to implement and fund the Personal Patrol Vehicle program for three years,” which “induced actual and reasonable action” by appellants, who relied on the MdTA’s promise to their detriment. In the view of the FOP, the MdTA should have foreseen that its promise to fund the PPV program “would induce action on the- part of persons to accept employment with the [MdTAP] and/or convince persons to forego other employment options and remain employed with the [MdTAP].” In addition, appellants averred that the Lodge acted in reliance on the promise by causing the collective bargaining bills to be withdrawn in the 2006 legislative session, and claimed that it “subsequently has not supported any collective bargaining bills to date.” 22 As to the individual officers/plaintiffs, the complaint alleged that six of them had left the Baltimore City Police force after ¹⁴⁷ several years of employment and had joined the MdTAP in September 2006, based on the MdTAP’s “advertisement of ‘take home cars’ on its recruitment brochure, website, and during orientation.” Some averred that they could have retired substantially earlier, or could have accepted employment with other police agencies offering take-home cars or other “competitive benefits,” but chose to join the MdTAP because of the PPV program. Notably, several of the individual plaintiffs were assigned to duty at the Harry W. Nice Memorial Bridge, one of the toll bridges operated by the MdTA, situated in southern Charles County. They alleged that their commutes to the Nice Bridge ranged between 50 and 121 miles each way, and claimed, inter alia, that they had accepted assignment to that duty station because the “remote” Nice Bridge station “was designated as the first location to receive take home cars.” In sum, the plaintiffs urged that they had “suffered a detriment which can only be remedied by the enforcement of the promise.” They requested that the court “enforce the promise of the Defendants to fund and implement the Personal Patrol Vehicle program.... ” On August 20, 2007, the MdTA filed a motion to dismiss for failure to state a claim upon which relief could be granted. 23 The Authority asserted several grounds for dismissal of the breach of contract claim.

First, it argued that the Agreement was too indefinite to be enforced. Second, it asserted that the Agreement was unenforceable as against public policy, for several reasons: (a) it was a contract for the exercise of personal influence over legislators, and/or was contingent upon the defeat of legislation; (b) the Agreement was ultra vires, because the statutory grant of authority to the MdTA did not authorize it to influence legislation, and was thus barred by ¹⁴⁸ sovereign immunity; (c) the Agreement was in essence a contract to procure the services of the Lodge to lobby the General Assembly, but it failed to comply, with State law governing procurement contracts; and (d) the Agreement was essentially a collective bargaining agreement, and the MdTA had no statutory authority to collectively bargain with its employees, nor did the Agreement observe the procedures mandated for State employee collective bargaining. As to the promissory estoppel claim, the MdTA contended that promissory estoppel could not be asserted against a State agency. But, even if it could, the MdTA alleged that: (a) plaintiffs had not adequately stated a claim satisfying the elements of promissory estoppel, and (b) the promissory es-toppel claim was barred for the same reasons that rendered the Agreement unenforceable as a contract.

In their opposition, appellants argued: “The Agreement is not too indefinite to be enforced, as it incorporates a comprehensive Proposal extensively explaining the cost of the program and ... its benefits----” They submitted as an exhibit to the Opposition a large binder that they asserted was the “notebook” identified in the Agreement as the “thoroughly documented request” for the PPV program. Other exhibits to the Opposition included a series of “PowerPoint” slides and an “executive summary” regarding the PPV program, drawn from the binder; a copy of the minutes of the April 20, 2006, meeting of the Authority, showing that the Authority had “unanimously approved” the PPV program “in exchange for the withdrawal of a bill concerning collective bargaining”; and affidavits of McLhinney, Zagraiek, and Anderson, describing the circumstances in which the PPV proposal was developed and the Agreement was signed, as well as the FOP’s interactions with members of the Legislature regarding the proposed collective bargaining legislation. The Lodge also addressed the MdTA’s arguments that the Agreement offended public policy. In the Lodge’s view, “the FOP did not agree to exercise its personal influence over particular legislators to defeat the legislation.

The FOP ¹⁴⁹ merely agreed to request that the two bills it had previously submitted be withdrawn,” because it believed that the PPV program “was more beneficial than non-binding collective bargaining in obtaining and retaining qualified officers.” Moreover, the Lodge asserted that “the FOP members presenting facts to the Legislature and making this request, were not being paid under the Agreement for ‘lobbying’----” In addition, the Lodge disputed the MdTA’s argument that the Agreement was ultra vires. Noting that the Agreement had been signed by the Authority’s Executive Secretary and approved unanimously by the Authority, the Lodge asserted the Agreement was within the scope of the MdTA’s powers. According to the Lodge, “the Agreement did not call on the MdTA to spend its funds in hiring a private agent to lobby the General Assembly....” As to the Authority’s argument that the Agreement failed to comply with the State procurement statutes, the Lodge argued that “the only procurement involved in this case is the procurement of the vehicles to use in the PPV program, which the MdTA has authority to purchase.” Further, the Lodge rejected the Authority’s characterization of the Agreement as a collective bargaining agreement, stating: “[T]he MdTA was not entering into a binding agreement with its employees on a collective basis establishing working conditions. The PPV program was a means to furthering recruitment and retention of qualified police officers, and increasing efficiency of the MdTA Police Force.” Finally, with respect to the promissory estoppel claim, the Lodge sought to distinguish the cases cited by the MdTA for the proposition that promissory estoppel cannot be asserted against the State.

It also posited: “A statement by the Police Chief as well as a list of benefits provided on an official website are more than authoritative sources for an officer to rely on.... [T]he authoritative nature of the sources of information supports] the element of ‘reasonable reliance.’ ” On September 6, 2007, the MdTA filed a “Motion to Disqualify Plaintiffs’ Counsel and Exclude Evidence.” The Au ¹⁵⁰ thority claimed that McLhinney, MdTAP’s former Police Chief, was hired by the FOP “to work as a consultant on this matter, notwithstanding McLhinney’s substantial involvement in this matter on behalf of MdTA.” Claiming that such conduct violated Rules 3.4 and 4.4 of the Maryland Rules of Professional Conduct, appellees sought disqualification of plaintiffs’ counsel and the evidentiary exclusion of any testimony or statements by McLhinney, as well as documents that plaintiffs’ attorneys had derived from their employment of McLhinney. The Lodge responded to the MdTA’s Motion to Disqualify on October 2, 2007, contending that McLhinney’s employment by FOP’s counsel did not violate the Rules of Professional Conduct. The Lodge offered an affidavit of McLhinney, dated September 23, 2007, to support that assertion. After some procedural turns that are not relevant to the issues on appeal, the two motions were heard on July 15, 2008.

As to the MdTA’s argument that the agreement was too indefinite to enforce, the judge referred to the “thoroughly documented request” for the PPV program referenced in the Agreement and asked, “[IJsn’t that a matter of proof? ... Assuming that ... everyone agrees, yes the thoroughly documented request existed, and this is it, then doesn’t that eviscerate your argument?” The court also commented: When a Court looks at a contract, one of two things has to happen. Either the Court finds as a matter of law that the contract is valid or invalid, or the Court finds that there is an ambiguity, in which case it becomes a question of fact for the trier of fact, and the Court simply can’t make a decision on its own.... I believe that the situation in this case is that ... the State has raised the issue of ambiguity, which would have to be considered by the trier of fact in the case if it were tried.

The MdTA argued that the Agreement was subject to State procurement law as a contract to procure services — i.e., the Lodge’s lobbying of the General Assembly. The Lodge’s counsel responded that “this was not a contract to procure lobbying services from the FOP. It was an agreement to ¹⁵¹ procure cars.” (Emphasis added.) Further, the Lodge contended that the MdTA was not subject to State procurement law in purchasing vehicles, because the Authority “is unique in that sense in that they are independent of all State govern-ment____ The MdTA is unique in the fact that its budget comes from the revenues raised through tolls.... ” The court remarked: Either way, doesn’t the contract have to be approved? ... Whether it[’]s services or materials, they still have to buy them from the lowest responsible bidder.

They can’t buy them from the ... secretary’s brother-in-law who’s going to get a 200 percent mark up on the item when somebody else would give the State a better deal. [WJhen you’re spending the State’s money, it has to be done through the procurement process, and ... an independent agency can’t waste the money. The MdTA’s arguments that the Agreement was unenforceable as against public policy found purchase with the court. The court determined that the Agreement was “completely unenforceable on the ground of sovereign immunity.” It also said: “It seems to me [the Agreement] violates the procurement laws, and the collective bargaining laws that are well established in our State.” Accordingly, the court stated that it would grant the motion to dismiss. As to the MdTA’s motion to disqualify plaintiffs’ counsel, the court stated: “It’s moot.

The Court has dismissed the case.” Thereafter, on July 21, 2008, the court entered a written order, stating that “the motion, pursuant to Rule 2-322(c), is treated as a motion for summary judgment.” It also said that, “[u]pon consideration of the motion of ... the Maryland Transportation Authority and its members, to dismiss plaintiffs Second Amended Complaint, the plaintiffs’ opposition thereto, and the exhibits and affidavits attached to plaintiffs’ opposition memorandum,” and “finding no dispute of material ¹⁵² fact,” the defendants were “entitled to judgment as a matter of law.” On July 25, 2008, appellants filed a motion for reconsideration, in which they asserted that “proper procurement procedures were followed when purchasing vehicles for the take-home car program.” The Lodge complained that, at the hearing, “instead of focusing on issue[s] surrounding lobbying, the court inquired mostly about the issue of proper procurement procedures when purchasing the cars for the take-home car program.” Appellants also suggested that they had been ambushed by that issue. Contrary to its position at the hearing, the Lodge conceded that, “[l]ike any State agency, the MdTA is subject to the State Finance and Procurement Article when making purchases.” But, the Lodge asserted: “Appropriate procurement procedures were followed and the vehicles for the take-home car program were purchased through a purchase contract already established by the Department Budget [and] Management after the MdTA approved the funds to be spent on the purchase.” According to the FOP, “there were contracts that were already established by the State to purchase the vehicles from a particular manufacturer and supplier, and procurement procedures had already been followed. Because the [vehicle procurement] contract was already established, the Authority could purchase vehicles through these contracts, without having to re-engage in the procurement process.” In support of its motion, the Lodge attached an affidavit of McLhinney, describing the purchase of the vehicles for the PPV program, and an affidavit of former MdTAP Major Martin Uzarowski, who averred that, until his retirement from the MdTAP in December 2006, he was in charge of the MdTAP’s budget processes as “Chief of the Support Services Bureau” for the MdTAP. Uzarowski described the purchase of the vehicles for the PPV program and said: “[I]f we were purchasing vehicles through already-established contracts, MdTA would not have to go through any further procurement procedures[.]” ¹⁵³ In its opposition, the MdTA suggested that the Lodge had misconceived the basis of the court’s grant of summary judgment, and asked the court to clarify the grounds for its ruling.

In an Order of October 7, 2008, the court denied appellants’ motion for reconsideration. It also stated that it “enter[ed] judgment in favor of the defendants for the reasons stated in the defendants’ motion and the memoranda submitted in support thereof.” We shall include additional facts in our discussion.

III

Discussion We begin our discussion with the observation that the Agreement between the Authority and the Lodge seems quite unusual. Indeed, if the MdTA were a budgeted agency, subject to the appropriations process, and did not enjoy its independent structure, the Agreement would likely be unenforceable for several reasons. See, e.g., S.F.P. § 7-237(b) (prohibiting State officers to “make or participate in making for any purpose a contract that purports to bind the State to pay any amount unless money has been appropriated for that purpose and remains unspent” or “incur a liability or spend money in excess of the applicable appropriation”); Md.Code (2009 RepLVol.), § 3-205(e) of the State Government Article (“S.G.”) (prohibiting a Governor whose term is ending to submit a budget binding the next administration). Nevertheless, upon close examination, and in light of the applicable standard of review, none of the particular grounds advanced by the Authority invalidate the Agreement on contract grounds. 24 ¹⁵⁴ A. Standard of Review Appellants submitted numerous exhibits in connection with their opposition to appellees’ motion to dismiss, which the court considered.

Therefore, the circuit court appropriately considered appellees’ motion to dismiss as a motion for summary judgment. See Hrehorovich v. Harbor Hosp. Ctr., 93 Md.App. 772, 788 , 614 A.2d 1021 (1992), cert, denied, 330 Md. 319 , 624 A.2d 490 (1993); Md. Rule 2-322(c) (“If, on a motion to dismiss ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501.... ”). 25 ¹⁵⁵ We review, de novo, an order granting summary judgment. Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006).

In our review, we construe the record in the light most favorable to the non-moving party. Bednar v. Provident Bank of Md., Inc., 402 Md. 532, 542 , 937 A.2d 210 (2007). Like the appellees, we shall assume, for the purpose of our review, the veracity of appellants’ factual allegations, and proceed to determine whether the trial court’s decision was legally correct. See Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206 (2001); Williams v. Mayor & City Council of Balt., 359 Md. 101, 114 , 753 A.2d 41 (2000). “ ‘Ordinarily, an appellate court should review a grant of summary judgment only on the grounds relied upon by the trial court.’ ” Sadler v. Dimensions Healthcare Corp., 378 Md. 509 , 537 n. 10, 836 A.2d 655 (2003) (citation omitted).

At the hearing, the circuit court was skeptical that the Agreement was too indefinite to be enforced. The court seemed to rest its decision on other grounds advanced by the MdTA. Nevertheless, it is usually “the written order that constitutes the judgment of the court....” In re Justin D., 357 Md. 431, 445 , 745 A.2d 408 (2000). In the order denying appellants’ motion for reconsideration, the court stated that summary judgment was granted “for the reasons stated in the defendants’ motion and the memoranda submitted in support thereof.” Accordingly, we shall consider all of the grounds advanced by appellees for dismissal of the suit.

B. Sovereign Immunity Because this case involves a claim against a State agency, the doctrine of sovereign immunity provides a backdrop for all of the contentions. “Grounded in ancient common law, the doctrine of sovereign immunity bars individuals from ¹⁵⁶ bringing actions against the State, thus protecting it from interference with governmental functions and preserving its control over its agencies and funds.” Condon v. State, 332 Md. 481, 492 , 632 A.2d 753 (1993). “Sovereign immunity ‘is applicable not only to the State itself, but also to its agencies and instrumentalities, unless the General Assembly has waived the immunity either directly or by necessary implication.’ ” Proctor v. Washington Metro. Area Transit Auth., 412 Md. 691, 709 , 990 A.2d 1048 (2010) (citation omitted). In Bugg, swpra, 31 Md.App. 622, 633 , 358 A.2d 562 , this Court held: “It is beyond question that the Maryland Transportation Authority is an agency of the State and as such enjoys the same sovereign immunity as does the State.... ” In various statutes, the Legislature has waived the State’s sovereign immunity, under limited conditions. 26 “If the State chooses, by legislative action, to waive its sovereign immunity, [the courts] strictly construe[ ] the waiver in favor of the State.” Proctor, 412 Md. at 709 , 990 A.2d 1048 . Thus, “ ‘[a] conditional or partial waiver of sovereign immunity certainly is not intended to put governmental entities on exactly the same footing’ ” as private parties.

Rios v. Montgomery County, 386 Md. 104, 135-36 , 872 A.2d 1 (2005) (citation omitted). Of import here, the State has waived its sovereign immunity under limited circumstances in regard to claims based on written contracts. See Magnetti v. Univ. of Md., 402 Md. 548 , 560-562 & n. 6, 937 A.2d 219 (2007). The waiver of sovereign immunity is embodied in S.G. §§ 12-201 et seq. 27 S.G. § 12-201(a) provides: ¹⁵⁷ Except as otherwise expressly provided by a law of the State, the State, its officers, and its units may not raise the defense of sovereign immunity in a contract action, in a court of the State, based on a written contract that an official or employee executed for the State or 1 of its units while the official or employee was acting within the scope of the authority of the official or employee.[ 28 ] C. Indefiniteness Appellants contend that the “Agreement is a legally enforceable contract because it is not vague or uncertain in its essential terms.” They posit: “[T]he Agreement states a definite amount of $8.82 Million to be spent on the program per year, and in addition, the Agreement states that “The PPY program will be essentially the program outlined in the notebook prepared by the MdTAP.” The Agreement incorporates the Proposal to govern the implementation of the program, which breaks down the cost of the program and provides for vehicles to be purchased over the three years.” Appellants add: “The specifics of the amount to be spent each year are easily referred to in the Proposal which is incorporated into the last line of the Agreement.” Appellees counter: “The circuit court appropriately granted the Authority judgment on the Lodge’s breach of contract claim because the alleged agreement is too indefinite to enforce.” Claiming that the “essential terms are lacking or unclear,” appellees posit: “The purported agreement does not specify how many patrol cars the Authority was to supply, or ¹⁵⁸ when, or to which categories or classifications of Authority Police officers.

There also is no specification of make, model, size, type, or specialized features of the law enforcement vehicles to be purchased.” In addition, appellees argue: The proposed cost of the program, “$3.82 million” in the first year of what appears to have been contemplated as a three-year program, is “outlined” in a proposal that is neither incorporated into the “agreement” nor attached to the complaint. Indeed, it is unclear from the face of the agreement whether the multi-million dollar cost is for the entire proposed “three-year phase-in,” or only for the first year. If the latter, then the agreement contains no indication what the cost to the State and its taxpayers would be for the subsequent two years of the “phase-in,” or for any ensuing years of the program once established, although it could well exceed $12 million. Appellees add: Here, the absent key terms include the number of vehicles to be purchased, the type of vehicles to be purchased, the manner in which they were to be assigned, and the total cost of the program.

Absent such terms, no binding contract has formed, because there was no specific promise to which the Authority can be bound. Further, appellees maintain that appellants are “mistaken” as to their claim that the notebook “could supply the specifics ----” They argue that “while the memorandum states that the PPV program would be ‘essentially’ the program described in the ‘notebook,’ a program that is ‘essentially’ the same is not the same, and the [Agreement] does not specify how it would differ.” In addition, they insist that the Agreement violates the Statute of Frauds, set forth in § 5-901 of the Courts and Judicial Proceedings Article of the Md.Code (2006 Repl.Vol., 2009 Supp.). They assert: “Under the statute of frauds, topically related documents that nevertheless fail to supply essential contract terms are insufficient to satisfy the statute of frauds.” ¹⁵⁹ It is well established that an enforceable contract must “express with definiteness and certainty the nature and extent of the parties’ obligations.” County Comm’rs for Carroll County v. Forty West Builders, Inc., 178 Md.App. 328, 377 , 941 A.2d 1181 (citing Canaras v. Lift Truck Servs., Inc., 272 Md. 337, 346 , 322 A.2d 866 (1974)), cert, denied, 405 Md. 63 , 949 A.2d 652 (2008). See Kiley v. First Nat’l Bank, 102 Md.App. 317, 333-34 , 649 A.2d 1145 , cert, denied, 338 Md. 116 , 656 A.2d 772 (1995), cert, denied, 516 U.S. 866 , 116 S.Ct. 181 , 133 L.Ed.2d 120 (1995).

Put another way, “ ‘[a] court cannot enforce a contract unless it can determine what it is.’ ” First Nat’l Bank of Md. v. Burton, Parsons & Co., Inc., 57 Md.App. 437, 450 , 470 A.2d 822 (citation omitted), cert, denied, 300 Md. 88 , 475 A.2d 1200 (1984). “If the contract omits an important term or is too vague with respect to essential terms, the contract may be invalid.” Forty West, 178 Md.App. at 378 , 941 A.2d 1181 . “Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement have often been held to prevent the creation of an enforceable contract.” Arthur L. Corbin, et al., 1 Corbin On Contracts § 4.1, at 525 (rev. ed.1993, 2008 Spring Cum.Supp.) (“Cor-bin”). See Schloss v. Davis, 213 Md. 119, 123 , 131 A.2d 287 (1957) (a “contract may be so vague and uncertain as to price or amount as to be unenforceable”); see also Restatement (Second) op Contracts, § 33(1), at 92 (1981) (“Restatement”) (“Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.”) As Professor Williston’s treatise states: “It is a necessary requirement that an agreement, in order to be binding, must be sufficiently definite to enable the courts to give it an exact meaning.” 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 4:21, at 634 (4th ed.1990, 2009 Supp.) (“WILLISTON”). 29 In Robinson v. ¹⁶⁰ Gardiner, 196 Md. 213, 217 , 76 A.2d 354 (1950), the Court explained: Of course, no action will he upon a contract, whether written or verbal, where such a contract is vague or uncertain in its essential terras. The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. If the agreement be so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury could make a contract for the parties.

Such a contract cannot be enforced in equity nor sued upon in law. For a contract to be legally enforceable, its language must not only be sufficiently definite to clearly inform the parties to it of what they may be called upon by its terms to do, but also must be sufficiently clear and definite in order that the courts, which may be required to enforce it, may be able to know the purpose and intention of the parties. (Citations omitted.) Nevertheless, “courts are reluctant to reject an agreement, regularly and fairly made, as unintelligible or insensible.” Quillen v. Kelley, 216 Md. 396, 407 , 140 A.2d 517 (1958). Because the “law ... leans against the destruction of contracts because of uncertainty[,] ... courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained.” Id.

See also 1 Williston, § 4:21, at 650 (“A court will, if possible, interpret doubtful agreements by attaching a sufficiently definite meaning to a bargain if the parties evidently intended to enter into a binding contract.”) But see Bond v. Weller, 141 Md. 8, 11 , 118 A. 142 (1922) (finding that, in the context of a land sale contract, the absence of any indication in the contract as to the amount of the loan that would be secured made the contract “incomplete, indefinite and uncertain”). ¹⁶¹ As we have seen, the Agreement provides: “The PPV program will be essentially the program outlined in the notebook prepared by the MdTAP----” However, the Agreement does not specify a dollar amount for the second and third year of the PPV program. Nor does it specify the number, cost, or type of vehicles for the PPV program. Appellees view these omissions as fatal flaws. 30 Appellants contend: “As to the supplier of the cars, the Department of Budget and Management would be charged with selecting the appropriate manufacturer or supplier. Thus, the supplier of the cars being ordered would also not be included in the Agreement because that decision was not the FOP’s to make.” Moreover, as appellants point out, the Agreement refers to the notebook, which they describe as a “comprehensive proposal which identifies a definite cost and number of vehicles to be purchased.” As an exhibit to their Opposition to appellees’ motion, appellants submitted the binder that they assert is the “notebook” referred to in the Agreement, and the MdTA did not appear to dispute that the binder is the “notebook.” 31 In our view, the Agreement sufficiently expresses, with definiteness and certainty, the nature and extent of the parties’ obligations.

A contract “ ‘is not rendered unenforceable merely because the parties do not supply every conceivable detail or anticipate every contingency that may arise.’ ” Forty West, 178 Md.App. at 381-82 , 941 A.2d 1181 (citation omitted). ¹⁶² Even if the Agreement, standing alone, contained insufficient detail to be enforceable, the Agreement’s reference to the “notebook,” and its explicit indication that “the PPV program will be essentially the program outlined in the notebook,” make clear that the “notebook” was incorporated by reference into the Agreement, 32 and provided the details of the program that the MdTA was agreeing to implement. The description of the PPV program contained in the notebook is clear enough, in our view, to form the basis of a contract. The binder contains a draft “Personal Patrol Vehicle Directive,” Tab 1, specifying which officers would be eligible to utilize a take-home vehicle, and the acceptable and unacceptable uses of the vehicles. Tab 4 contains a detailed cost estimate for marked and unmarked police vehicles, specifying the cost of the accessories and additional equipment for each vehicle.

The cost of a marked vehicle is estimated at $29,770.36, while the estimated cost of an unmarked vehicle is $28,971.76. In addition, the binder reflects a proposal to add 302 cars to the MdTAP vehicle fleet through the PPV program. Of those 302 vehicles, 237 are planned to be marked vehicles, while 65 are planned to be unmarked. Multiplying the number of each type of vehicle by the per-vehicle cost, and then dividing the total capital outlay over three years, the binder arrives at a projected capital cost of “$2,979,579.07” per ¹⁶³ year, or a “3-Year Phase in Cost per year [of] approximately] $3 million.” 33 Furthermore, the binder projects that the PPV program will incur an additional $826,047 (ie., approximately $.82 million) in annual operating costs for maintenance and periodic replacement of fleet vehicles.

Thus, it is clear how the “$3.82 million” figure stated in the Agreement was determined, and it is likewise clear that $3.82 million was the projected annual cost of the program in the second and third years of operation. Given the contents of the binder, there is no merit to the Authority’s contention that the Agreement did not specify “the number of vehicles to be purchased, the type of vehicles to be purchased, the manner in which they were to be assigned, and the total cost of the program.” D. Public Policy As outlined, appellees sought to dismiss the suit on the ground that the Agreement contravened public policy. Appellants advance four grounds to refute appellees’ position. They argue that “[t]he Agreement did not contemplate any improper influence over the Maryland Legislature,” nor was it “contingent on the defeat of legislation.” Further, they claim that it “was properly ratified by the MdTA and was not beyond the scope of the MdTA’s Authority; therefore, the Agreement is not ultra vires and this case is not barred by sovereign ¹⁶⁴ immunity.” In addition, they assert: “The MdTA did not go outside the strictures of State procurement law because the only procurement proposed in the Agreement was for the purchase of vehicles.” Lastly, they argue: “The Agreement and its ratification by the MdTA is enforceable because it was not a collective bargaining agreement subject to statutory preconditions.” As we review these grounds, we are mindful that “Maryland courts have been hesitant to strike down voluntary bargains on public policy grounds, doing so only in those cases where the challenged agreement is patently offensive to the public good, that is, where ‘the common sense of the entire community would ... pronounce it’ invalid.” Md.-Nat’l Capital Park & Planning Comm’n v. Wash.

Nat’l Arena, 282 Md. 588, 606 , 386 A.2d 1216 (1978) (quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879)) (alteration in original). 1. Contingency/Personal Influence The MdTA alleged that the Agreement was invalid, as a matter of public policy, because it called on the Lodge to exercise personal influence over legislators, and the “compensation” to the Lodge was contingent on defeat of the collective bargaining legislation. According to the MdTA, those features “exemplify], with precision, a particular type of agreement that, for nearly two hundred years, American courts have refused to enforce on grounds of public policy.” In its brief, the Authority suggests that the Agreement bears two “hallmarks” of an “unenforceable bargain to exercise improper influence over the legislative process.” First, the agency contends that the “intent or effect” of the Agreement was to “persuade the legislature (or particular legislators) through the use of personal influence, rather than through facts and arguments presented to show that the desired legislative action is good policy.” Second, the MdTA points to “the contingent nature of the alleged consideration”: it posits that a contract to appeal to lawmakers is unenforceable where “the benefit to the persuading party is contingent upon that party’s success in swaying the legislature.” ¹⁶⁵ In contrast, the Lodge maintains that the Agreement “did not contemplate any improper influence over the Maryland Legislature.” In its view, “[sjimply approaching members of the Maryland Legislature and presenting the facts and arguments ... as to why the FOP prefers the PPV program over collective bargaining, does not constitute improper influence.” The Lodge states: FOP members are permitted to advocate certain causes just as any other citizen is permitted to advocate or promote a cause to legislators. A citizen presenting facts or arguments to a legislator will many times be doing so to obtain some benefit....

However, the potential benefit does not result in transforming the citizen, or in this case the FOP and its members to lobbyists. Moreover, the Lodge maintains that the Agreement was not an unlawful contingency contract to influence the Legislature, because “the FOP members approaching the Maryland Legislature were not receiving monetary compensation for asking for withdrawal of the two bills.” In particular, the Lodge points out that “the Agreement contemplated that John Za-graiek approach the legislature,” and notes that Zagraiek, unlike rank-and-file MdTAP officers, “already had the benefit of a vehicle at the time the Agreement was signed.” Further, it observes: The purchase of the vehicles under the PPV program in no way constitutes “payment” to the FOP members presenting the information to the Legislature. The vehicles are property of the MdTA and do not belong to the police officers. In addition, the PPV Program provides vehicles to all police officers of the MdTA and not just those police officers who are also members of the FOP, and not just to those members of the FOP who actually presented the facts to the Legislature.

Finally, the Lodge distinguishes a contract to defeat legislation from the Agreement, which only called for the Lodge to “ ‘ask sponsors to withdraw the collective bargaining bills.’ ” The Lodge elaborates: ¹⁶⁶ The Agreement did not require the FOP to be successful in “defeating collective bargaining during the 2007 and 2008 sessions.” The Agreement only required that the FOP “not agree to support collective bargaining legislation in either of the following two years.” This clearly states that the FOP was to refrain from submitting and supporting any additional collective bargaining bills, which cannot be interpreted as “lobbying” or “exerting improper influence over the legislature,” when no affirmative action is being taken. (Internal citations omitted.) In support of its position, the MdTA relies upon a line of cases dating to the 19th century and the first half of the 20th century, which stand for the proposition that a contract that is contingent on the passage of legislation is invalid. The Authority’s claim fails because, as we shall explain, the rule of those cases has been significantly relaxed in the intervening decades. A leading early case on the topic is Trist v. Child, 88 U.S. (21 Wall.) 441 , 22 L.Ed. 623 (1874).

In that case, Trist had negotiated, on behalf of the United States, the Treaty of Guadelupe Hidalgo, which ended the Mexican-American War in 1848. Id. However, Trist had not been paid for his services. Id.

Therefore, Trist submitted a claim to Congress and retained Child to “take charge of the claim and prosecute it before Congress as his agent and attorney.” Id. at 442 . 34 Under the agreement, Child was to receive 25% of “whatever sum Congress might allow in payment of the claim.” Trist, 88 U.S. at 442 . Congress ultimately awarded Trist $14,559 for his services, but Trist “declined to pay” Child the contingency fee. Id. Child’s son (Child himself had since died) sued Trist, seeking to compel his compliance with the compensation ¹⁶⁷ agreement.

Id. At trial, the evidence showed that the Childs had “been to see various members of Congress, soliciting their influence in behalf of a bill introduced for the benefit of Mr. Trist, and in several instances obtaining a promise for it.” Id. The trial court ordered Trist to pay $3,639, with interest. Id. at 443 .

The Supreme Court reversed, finding that the contract was void as against public policy. Id. at 448-53 . The Court observed that “an agreement express or implied for purely professional services is valid.” Id. at 450 . It noted that this category includes: “drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing, to a committee or other proper authority, and other services of like character.” Id.

According to the Court: “All these things are intended to reach only the reason of those sought to be influenced.” Id. But, the Court explained that “such services are separated by a broad line of demarcation from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case.” Id. It determined, id. at 451: The agreement ... was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right, in such circumstances, to put himself in a position of temptation to do what is regarded as so pernicious in its character.

The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking. Another early case, cited by appellees, is Marshall v. Baltimore & Ohio Railroad Co., 57 U.S. (16 How.) 314, 14 L.Ed. 953 (1853). In that case, the B & ) Railroad Company procured the services of Marshall, on a contingent-fee basis, to obtain the passage of a bill in the Virginia legislature, granting the railroad company a particular right-of-way. Id. at 331-32 . ¹⁶⁸ Reviewing the decision of a trial court denying Marshall’s recovery, the Supreme Court upheld the trial court’s instructions to the jury on the unenforceability of contingent-fee contracts for the passage of legislation, opining that “all contracts for a contingent compensation for obtaining legislation, or to use personal or any secret or sinister influence on legislators, [are] void by the policy of the law.” Id. at 336 .

These principles have been discussed in a handful of Maryland cases. See Frenkil v. Hagan, 146 Md. 94 , 125 A. 909 (1924); Charles H. Steffey, Inc. v. Bridges, 140 Md. 429 , 117 A. 887 (1922); Wildey v. Collier, 7 Md. 273 (1854). However, none of the Maryland cases are directly applicable to the case at bar or squarely support the MdTA’s position. Wildey involved a contract to secure a nolle prosequi from the Governor for a criminal charge. 7 Md. at 273 .

The Court affirmed the trial court’s judgment that the contract was unenforceable, explaining that “to shield [the Executive Branch] and protect the community against the improvident exercise of its prerogatives, the law has declared that a recovery cannot be had” on a contract to secure executive clemency. Id. at 279 . It observed: “The same reason applies ■with equal force in support of claims for obtaining the passage of laws by the legislature.” Id. But, the Court qualified its statement, remarking: “We do not say that services of that kind may not be compensated when publicly rendered by advocates disclosing their true relation to the subject----” Id. at 279-80 .

It explained that the advocate was properly denied recovery on the contract because “the onus was certainly on him to show the means by which the governor had been induced to act favorably upon the application,” and to demonstrate that the method of persuasion was legitimate. Id. at 281 . In Steffey, a real estate broker sought to recover from a landlord a commission for facilitating the lease of the landlord’s real property to the United States Postal Service. Steffey, 140 Md. at 429-30 , 117 A. 887 .

Applicable postal regulations prohibited any person from facilitating a contract ¹⁶⁹ with the Postal Service on a contingency basis. Id. at 432-34 , 117 A. 887 . The Court held that the commission was not recoverable due to the postal regulations, but noted also that the regulations reflected sound policy against “‘agreements for pecuniary considerations to control the business operations of the Government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation.’ ” Id. at 436 , 117 A. 887 (citation omitted). Frenkil concerned a pipe supplier who hired a “prominent politician” on a contingency basis to negotiate the cancellation of a contract with the United States War Department, but then refused to pay the politician the agreed fee after the negotiations were successful.

Frenkil, 146 Md. at 102-03 , 125 A. 909 . The Court of Appeals explained that the supplier could lawfully employ an agent to assist him in obtaining relief from a claim of the Government against him, provided the services to be rendered are of a legitimate character. Indeed, the weight of authority supports the view ... that there are certain legitimate services which may be contracted for even in connection with the procurement of government contracts. But such services do not include the use of personal or political influence.

Id. at 104-05 , 125 A. 909 . Notably, the Court refused the supplier’s request to find the contingency contract unenforceable as a matter of law. Id. But, the Court vacated the judgment in favor of the politician and remanded because there was “evidence in the record from which the jury might have found that the service which [the politician] was expected to render was through the use of political influence, and the [supplier] was entitled to have that proposition submitted to the jury.” Id. at 105 , 125 A. 909 .

None of the Maryland cases involved contracts to influence legislative action. Moreover, Wildey suggests that the disfavor of contracts to influence legislation does not invalidate such contracts per se. Rather, the burden is on the party asserting the contract’s validity to show the propriety of any ¹⁷⁰ influence. See Wildey, 7 Md. at 279-81 .

Similarly, the Frenkil Court declined to say that a contingent contract to influence a government contracting decision was void as a matter of law; instead, the Court remanded for an evidentiary determination of whether the contracting parties expected the advocate to exert improper “political influence.” Frenkil, 146 Md. at 105 , 125 A. 909 . These limitations on the general principles articulated in Trist and Marshall presage a shift in doctrine that heretofore has not found definitive expression in reported Maryland decisions. Nevertheless, the shift in the law has occurred in other states. Documenting that shift, Corbin notes that “society always has viewed lobbying as an inherently suspect and unsavory activity, though perhaps a necessity.” 15 Corbin § 84.1, at 334.

As Corbin explains: “In earlier times the term ‘lobbyist’ had an ugly sound in American ears, and in many of the earlier cases courts held that a lobbying contract was contrary to public policy if the promised compensation was contingent on success in procuring the targeted legislation.” Id. at 338. Corbin synthesizes the modern view, id. at 337-41 (footnotes omitted): In general, courts should not find lobbying contracts contrary to public policy. A lobbying contract is not an agreement with a member of the legislature or any other official. It is a bargain for the employment of a lobbyist who undertakes for compensation to render services in causing the enactment of legislation that the employer desires.

Legislators should make decisions on an informed basis. Thus, any contract that has as its purpose the provision of facts and arguments to legislators does not offend public policy. The people who send their representatives to Congress, to a state legislature, or to a city council have a right to be informed as to pending legislation and are legally privileged to appear either in person or by agent to support or to oppose an enactment. Proposed legislation may benefit some — they lawfully may urge its enactment and present their arguments.

That legislation may injure ¹⁷¹ others — they ... may lawfully appear to oppose it. Bills introduced and supported by some pressure group may be injurious to other groups. There are very many lawful purposes, therefore, for which a lobbyist or other legislative agent may be employed and many kinds of service that such a person may render lawfully. Without regard to the compensation arrangement, if the services actually in contemplation or actually rendered by the lobbyist, in performance of the bargain, are unlawful in character or are clearly contrary to the public interest, all agree that the bargain is unenforceable.

If the services bargained for consist of the exercise of personal or political influence on legislators or officials, made effective by personal solicitation, the bargain may be unenforceable. If that personal influence is used to gain access to the official but the official is lobbied on the basis of the merits of the issue, the contract is enforceable. These statements apply regardless of the duties of the public officer whose action the lobbying is to affect, and regardless of whether that action is legislative, administrative, or judicial. The statements are true whether the purpose is to induce or to prevent legislation, or is to obtain a decree, an appointment to office, or a public contract.

The shift in the law described by Corbin is not inconsistent with the early Maryland cases we have reviewed. As we have noted, the Court in both Frenkil and Wildey declined to hold that contingent contracts to influence government action are always void as a matter of law. Rather, it was a question of fact whether the contracts contemplated improper influence upon State officials. Here, the Lodge produced uncontroverted affidavits of Za-graiek, Anderson, and McLhinney, describing advocacy that, on its face, was above-board.

Because both the circuit court and this Court are required to view the evidence in the light most favorable to the Lodge, as the non-moving party, Frenkil ¹⁷² and Wildey compel the conclusion that judgment as a matter of law on this point was improper. The MdTA cites two contemporary cases in support of its position. Both are inapposite, because they involved contingent contracts for monetary compensation to influence legislation, where a state statute specifically barred such contracts. See Rome v. Upton, 271 Ill.App.3d 517 , 208 Ill.Dec. 163 , 648 N.E.2d 1085, 1088 (1995) (relying on statute); Sholer v. State, 149 P.3d 1040 , 1046 (Okla.Civ.App.2006) (relying on statute).

To be sure, as the MdTA points out, Maryland law governing professional lobbying prohibits a “regulated lobbyist” from being engaged “for lobbying purposes for compensation that is dependent in any manner on ... the enactment or defeat of legislation.” S.G. § 15-713. Under the statutory scheme, a “regulated lobbyist” is defined primarily by whether the advocate is compensated above certain threshold monetary amounts for engaging in various modes of lobbying. See S.G. § 15-701. As the Lodge observes, the Lodge and its members are not “disinterested parties hired to represent others’ interests without any personal stake in the outcome.” Moreover, the statute does not apply here (nor does the MdTA contend that it does), because neither the Lodge nor its members are regulated lobbyists.

We are also skeptical of the MdTA’s premise that the Agreement calls for “contingent compensation.” Indeed, unlike any of the cases on this subject cited by either party or uncovered in our own research, the Agreement does not contemplate the pecuniary compensation of the Lodge or its members. The cases we have seen pertaining to the public policy against contracts for legislative influence involved a contingent financial incentive for the advocate. In this case, what the Lodge obtains as allegedly “contingent compensation” for its advocacy of one policy choice is simply another policy choice. The legislative process inherently involves public policy compromises, which result in advantages for some parties and disadvantages to others, as well as the choice of some policies and the rejection of others.

To describe the trade-offs struck in the course of lawmaking as “compensa ¹⁷³ tion” on a “contingency” basis is to stretch the meaning of those terms beyond their breaking point. Although it is not factually on all fours with this case, City of Warwick v. Boeng Corp., 472 A.2d 1214 (R.I.1984), is illuminating. In that case, “[t]he State of Rhode Island had been leasing a building located in the city of Warwick and owned by Boeng” for use as a courthouse. Id. at 1216 .

The State sought to exercise an option in the lease to purchase the building. Id. Under the applicable statutes, “the legislative body of the municipality in which the land was located [i.e., the City of Warwick] was required to approve the transfer prior to issuance of revenue bonds” by the State. Id.

The City refused to recommend approval of the sale, because “sale of the property to a state agency would remove it from the city tax rolls.” Id. at 1216-17 . The State refused to negotiate payment of the taxes with the city, and so Boeng and the Mayor of Warwick entered into negotiations, the product of which was an agreement by Boeng to pay the city two years’ worth of property taxes “ ‘upon the completion of the appropriate municipal legislative action ... and the sale of the subject real property’” by Boeng to the State. Id. at 1217 (quoting agreement). The Warwick City Council passed the appropriate legislation, and the sale was completed; however, Boeng then refused to pay the two years’ worth of taxes, prompting the city to sue for breach of contract.

Id. The trial court entered judgment for the city, and Boeng appealed. Id. The Rhode Island Supreme Court rejected Boeng’s contention that “a municipality cannot make a valid contract based upon the payment of money in return for an official’s promise to recommend passage of legislation, regardless of the official’s intention or the effect of the legislation.” Id. at 1218 .

The court aligned itself with the modern view that, “[generally, in situations in which no improper means are contemplated or bargained for, the bargain is not invalidated merely because the compensation to a party is contingent on the enactment of legislation.” Id. The court explained, id.: The public policy is to ensure that governmental decisions are made in the public interest and not conditioned on the ¹⁷⁴ personal interests or gain of a particular government official. In the present case, the mayor bargained in the public interest to preserve and protect the tax base of the city. He sought compensation from defendant for the loss to the city of a large yearly tax that would have resulted if the agreement had not been reached and the sale to the [State] approved.

There is no allegation or evidence that the mayor or any of the city’s agents acted improperly or with anything but the public’s interest in mind. A contract that was executed in the public interest without any improper motives on the part of the parties is not against public policy and therefore not void. City of Warwick resonates here. As in that case, there is no allegation here of any improper motive or consideration.

There is no allegation by appellees that Kittleman or the Authority decided to execute the Agreement with “anything but the public’s interest in mind.” Id. Plainly, the Authority in 2006 determined that it was more beneficial to the public and to the agency to implement the PPV program than to permit collective bargaining by MdTAP officers. Its execution of the Agreement reflects that value judgment. The fact that the MdTA, under new leadership, has now reconsidered that judgment does not, in and of itself, permit the agency to renege on its contractual obligations.

For the foregoing reasons, we hold that the circuit court erred in granting summary judgment on the basis that the Agreement was a contingency contract to influence legislation. 2. Procurement We next consider the MdTA’s contention that summary judgment was appropriate because the Agreement is a contract for the procurement of lobbying services, and therefore invalid because the parties failed to follow State procurement law in executing the contract. In a related argument, the Authority maintains that it has no statutory authority to hire lobbyists, and so the Agreement is ultra vires. ¹⁷⁵ At the motion hearing, the Lodge contended that the Agreement “was not a contract to procure lobbying services from the FOP. It was an agreement to procure cars.” Moreover, the Lodge argued that the MdTA’s independent budgetary authority permitted the agency to purchase vehicles without submitting to the State procurement process.

In its motion for reconsideration, however, the Lodge acknowledged that the purchase of the vehicles was subject to the procurement process, but alleged that the vehicles had been purchased through an existing procurement contract that fully complied with the procurement law. On appeal, the Lodge resurrects its argument that it is not subject to State procurement law in the purchase of vehicles. Relying on the S.F.P. Article, it asserts: The definition of procurement includes “the process of ... obtaining services,” while capital expenditures are exempt from the ordinary procurement rules. [S.F.P.] § 11-101(m). Because the Agreement contemplates the procurement of vehicles and not the procurement of the FOP’s services ..., it falls under the category of capital expenditures and is therefore exempt from the procurement rules.

In response, the MdTA argues that “[t]here is no question that the Authority is subject to state procurement laws.” We agree. Maryland’s General Procurement Law is set forth in Division II of the S.F.P. Article. A “procurement contract” is defined as “an agreement in any form entered into by a unit for procurement.” S.F.P. § ll-101(n). Section 11-202 of the S.F.P. Article provides that, “[e]xcept as otherwise expressly provided by law,” the General Procurement Law applies in a variety of procurement contexts, including “each expenditure by a unit under a procurement contract.” To understand the import of these phrases, we refer to the definitions provided by the statute.

As relevant here, “procurement” includes, among other activities, “the process of ... buying or otherwise obtaining supplies [or] services.” Id. § ll-101(m)(l). In turn, “supplies” include “tangible personal property,” id. § 11- ¹⁷⁶ 101(w)(l)(ii), and “services” means “the labor, time, or effort of a contractor.” Id. § 11 — 101 (t)(l)(i). It “includes services provided by attorneys, accountants, physicians, consultants, and other professionals who are independent contractors.” Id. § ll-101(t)(2). 35 Critically, a “unit,” for purposes of procurement law, includes any “entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement contract.” Id. § 11 — 101(x)(l). Despite the agency’s relative independence, we are convinced that the MdTA is an agency “in the Executive Branch of the State government,” within the meaning of the General Procurement Law.

To be sure, the MdTA’s independent budgetary authority arguably could suggest ambiguity as to whether the agency is a “unit” under the terms of S.F.P. § ll-101(x), considered out of context. See Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129 , 747 A.2d 625 (2000) (opining that S.F.P. § 11-101(x) was ambiguous as to whether local school boards, which are subject to local budgetary control but are State agencies, are “units” subject to General Procurement Law, but determining that local boards are not “units” because of separate procurement statutes applicable to local boards, and statutory history of those statutes and the General Procurement Law). But, in this case, any arguable ambiguity in that lone statutory provision disappears when we consider the General Procurement Law as a whole. See, e.g., In re Mark M., 365 Md. 687, 711 , 782 A.2d 332 (2001) (“When construing a statutory provision within a single statutory scheme, we must consider the statutory scheme as a whole to determine the legislative intent.”). ¹⁷⁷ Unlike in Chesapeake Charter, we do not need to consult the legislative history.

See Houghton v. Forrest, 412 Md. 578, 590 , 989 A.2d 223 (2010) (“[W]e need not investigate the legislative history of the statutory provision, [where] a plain reading of the statute resolves our questions.”). This is because the Legislature has explicitly stated that certain specific provisions of the General Procurement Law “do[ ] not apply to capital expenditures by ... the Maryland Transportation Authority, in connection with State roads, bridges, or highways.” S.F.P. § 12-101(a); see also id. §§ 12-107(a), 12-108(a), 12-202(a). The canon of statutory construction, “ex-pressio unius,” governs here: by providing that the MdTA is exempt in certain respects from the General Procurement Law, the General Assembly has indicated that the procurement law applies to the agency in all other respects. 36 See McLean Contracting Company v. MdTA, 70 Md.App. 514 , 521 A.2d 1251 (concluding that construction contractor must resolve procurement contract dispute with MdTA by claim with Board of Contract Appeals), cert, denied, 310 Md. 130 , 527 A.2d 51 (1987). Our determination that the MdTA is generally subject to State procurement law does not end our inquiry, however.

The MdTA cites various procurement statutes and regulations that it contends were not followed in regard to the Agreement. We need not catalog these provisions because, by reciting them, the Authority is begging the question. The Lodge does not contend that the procurement regulations were followed. The issue is whether the Agreement is a “procurement contract,” subject to the procurement law.

Our research suggests that the question of whether a given contract is a “procurement contract,” subject to the ¹⁷⁸ General Procurement Law, has been given scant appellate attention. As the Court observed in State v. Maryland State Board of Contract Appeals and Law Offices of Peter G. Angelos, P.C., 364 Md. 446 , 773 A.2d 504 (2001) (“Angelos”), the question itself has jurisdictional implications. If the Agreement were a procurement contract, the Lodge would be required to exhaust administrative remedies before seeking judicial relief. 37 As we shall explain, however, the Agreement is not a procurement contract. Angelos involved a contingent fee contract.

The Attorney General hired the Angelos law firm to represent the State in litigation against the tobacco industry. See id. at 449-50 , 773 A.2d 504 ; see also Philip Morris, Inc. v. Glendening, 349 Md. 660 , 709 A.2d 1230 (1998); State v. Philip Morris, Inc., 179 Md.App. 140 , 944 A.2d 1167 , cert, denied, 405 Md. 65 , 949 A.2d 653 (2008). After the tobacco litigation settled, the law firm sought payment from the State pursuant to the contingent fee agreement. Angelos, 364 Md. at 450 , 773 A.2d 504 .

The Attorney General denied the firm’s claims. Id. The firm appealed the Attorney General’s decision to the State Board of Contract Appeals. Id. at 451 , 773 A.2d 504 .

We pause to note that the Board of Contract Appeals is an “independent unit of the Executive Branch of the State government,” created by the General Procurement Law to resolve disputes with respect to State procurement contracts. S.F.P. §§ 15-205 to 15-206. The Board’s jurisdiction is set forth in S.F.P. § 15-211: § 15-211. Jurisdiction; finality of decisions.

(a) Jurisdiction. — The Appeals Board shall have jurisdiction to hear and decide all appeals arising from the final action of a unit: ¹⁷⁹ (1) on a protest relating to the formation of a procurement contract; or (2) except for a contract claim relating to a lease of real property, on a contract claim by a contractor or a unit concerning: (i) breach; (ii) performance; (iii) modification; or (iv) termination. (b) Finality of decisions. — A decision of the Appeals Board is final, subject to any judicial review. In response to the law firm’s administrative appeal, the Attorney General moved to dismiss, arguing that the Board lacked subject matter jurisdiction because the contingent fee contract was “not a procurement contract” -within the scope of the General Procurement Law. Angelos, 364 Md. at 450-51 , 773 A.2d 504 .

The Attorney General claimed, instead, that the contractual arrangement with the firm was governed solely by a separate statute that gave the Attorney General authority to employ “ ‘assistant counsel’ ” in an “ ‘extraordinary or unforeseen case.’ ” Id. at 452 & n. 4, 773 A.2d 504 (quoting statute). The Attorney General also filed in circuit court a separate complaint for declaratory and injunctive relief against the firm, seeking to avoid the contingent fee claims on several grounds. Id. at 451 , 773 A.2d 504 . The firm responded with a counterclaim seeking specific performance of the contract.

Id. In the administrative action, the Board of Contract Appeals determined that the firm “ ‘is an independent contractor whose Contract is covered by the General Procurement Law,’ ” and denied the Attorney General’s motion to dismiss. Id. at 452 , 773 A.2d 504 (quoting the Board of Contract Appeals). In the circuit court, the Attorney General sought a writ of certiorari to reverse the interlocutory decision of the Board.

Id. at 453 , 773 A.2d 504 . The circuit court determined, in agreement with the Board, that the contract was a procurement contract. Therefore, it dismissed the declaratory action and denied the writ. Id. ¹⁸⁰ Thereafter, the Court of Appeals held that the circuit court did not have authority to review an interlocutory jurisdictional decision of the Board of Contract Appeals, id. at 456 , 773 A.2d 504 , and should not have reached the issue of whether the contract was a procurement contract.

Id. at 458 , 773 A.2d 504 . In the Court’s view, the parties were not “entitled to a judicial decision concerning the nature of the contract prior to a final decision by the Board of Contract Appeals.” Id. at 457 , 773 A.2d 504 . It reasoned: “Where an administrative agency has primary or exclusive jurisdiction over a controversy, the parties ... must ordinarily await a final administrative decision before resorting to the courts for resolution of the controversy.” Id. Notably, the Court rejected the Attorney General’s claim that, “where the administrative agency has no jurisdiction over a controversy, the parties need not wait for a final administrative decision but are entitled to an immediate judicial resolution of the matter.” Id.

It recognized that, “[i]n situations where a controversy or matter is pending before an adjudicatory administrative agency, we have assumed, without deciding, that a party need not await a final administrative decision where the administrative ‘agency is palpably without jurisdiction.’ ” Id. at 457-58 , 773 A.2d 504 (citation omitted) (internal quotation marks omitted). Nevertheless, the Court posited that the case before it was not such a situation, stating: Regardless of how the “procurement contract” issue is ultimately resolved, it is obvious that the Board of Contract Appeals is not “palpably without jurisdiction.” The contract at issue is a government contract for the procurement of legal services to be rendered to the State of Maryland. It was submitted by the Attorney General to the Board of Public Works for approval by that Board. While it may or may not technically be a “procurement contract” within the meaning of the state procurement law, the issue is obviously a reasonably debatable one.

As the agency charged with making final administrative adjudications under the procurement law, the Board of Contract Appeals’ determination ¹⁸¹ of the issue, embodied in a final decision by the Board, would be helpful prior to a judicial resolution of the issue. This is clearly not a situation where the Board of Contract Appeals is “palpably without jurisdiction.” Id. at 458 , 773 A.2d 504 (citation omitted). Accordingly, the Court determined that the circuit court should have denied the writ of certiorari, id. at 456 , 773 A.2d 504 , and should have stayed the declaratory action, pending the outcome of the administrative proceeding. Id. at 458 , 773 A.2d 504 .

We glean from Angelos that the question of whether a contract with a State agency is a “procurement contract,” within the purview of the General Procurement Law, is jurisdictional. Angelos teaches that, ordinarily, the question of whether a particular contract is a “procurement contract” should be resolved, in the first instance, by the Board of Contract Appeals. However, the parties need not seek initial resolution from the Board if the Board is “palpably without jurisdiction.” Id. at 458 , 773 A.2d 504 . Writing for the Court in Heery International, Inc. v. Montgomery County, 384 Md. 129 , 862 A.2d 976 (2004), Judge Harrell elucidated the meaning of the “palpably without jurisdiction” exception to the requirement of administrative exhaustion, from which we derive the following guideposts.

Id. at 138-145 & nn. 6-7, 862 A.2d 976 . First, the “palpably without jurisdiction” standard is an exception, applicable in “extraordinary circumstances,” id. at 140 , 862 A.2d 976 , to the principle that “particular issues of statutory interpretation should be decided in the first instance by the administrative agency charged with interpreting the particular statute.” Id. at 143 , 862 A.2d 976 . 38 Second, “in order to invoke the ‘palpably without jurisdiction’ standard, the agency’s actions must concern the agency’s ¹⁸² ‘fundamental jurisdiction.’ ” Id. (citation omitted). In other words, the party invoking the standard must “challenge[ ] the underlying fundamental subject matter jurisdiction of the agency,” id., and must “demonstrate that [the] agency is operating indisputably beyond its authority, and distinctly outside its fundamental jurisdiction,” rather than merely misinterpreting or misapplying the applicable substantive or procedural law.

Id. at 145 , 862 A.2d 976 . Third, although Maryland cases “confirm” the standard’s “availability in the appropriate case,” id. at 141-42 & n. 7, 862 A.2d 976 , there are few examples in the case law of an agency acting “palpably without jurisdiction” or “palpably without authority.” When Heery was decided, no Maryland case had held that an agency was “palpably without jurisdiction” to adjudicate a particular case. Id. 39 As noted, the Board of Contract Appeals is not “palpably without jurisdiction” over a “contract for the procurement of ¹⁸³ ... services to be rendered to the State,” even if that contract may not technically be a “procurement contract.” Angelos, 364 Md. at 458 , 773 A.2d 504 . Angelos also teaches that courts should defer to an agency to make its own jurisdictional determination in the first instance, if the question on which jurisdiction turns is “reasonably debatable.” Id.

We are also guided by other examples from the case law, which illustrate when an agency is not “palpably without jurisdiction.” See, e.g., Freedom Express/Domegold, supra, 375 Md. at 20, 825 A.2d 354 (Human Relations Commission was not palpably without jurisdiction to determine whether business met number-of-employees threshold test to qualify as an “employer” subject to the Commission’s enforcement power); Bd. of License Comm’rs v. Corridor Wine, Inc., 361 Md. 403, 417-19 , 761 A.2d 916 (2000) (liquor board was not palpably without jurisdiction to determine whether licensee’s probation before judgment qualified under applicable statute as a bar to further proceedings before board); Montgomery County v. Ward, 331 Md. 521, 524-28 , 629 A.2d 619 (1993) (Workers’ Compensation Commission was not palpably without jurisdiction over workers’ compensation case, despite party’s contention that Commission violated applicable procedural regulations by entertaining a “second motion for rehearing,” which regulations allegedly did not authorize); Md. Comm’n on Human Relations v. MTA 294 Md. 225, 235 , 449 A.2d 385 (1982) (Commission on Human Relations, which had jurisdiction over employment discrimination complaints based on “ ‘physical or mental handicap,’ ” was not palpably without jurisdiction in discrimination claim to determine whether obesity qualified as a handicap). In this case, however, whether the Agreement was a procurement contract is not “reasonably debatable.” As we see it, there is no merit to the MdTA’s argument that the Agreement was a procurement contract — whether to procure vehicles or services. To be sure, the Agreement contemplates that vehicles would be procured, but that does not mean that the Agreement itself was a procurement contract. Cf.

Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed.Cir.1983) ¹⁸⁴ (under federal law, procurement contracts do not include “other contracts tangentially connected with government procurement of goods and services”). The Agreement is not a procurement contract for vehicles, because it is not an agreement between the MdTA and the supplier of the vehicles to the agency. We regard as instructive the common-sense observation of the United States Court of Appeals for the Federal Circuit, noting that the hallmark of a government procurement contract is a “buyer-seller relationship.” G.E. Boggs & Assocs. v. Roskens, 969 F.2d 1028, 1027 (Fed.Cir.1992); see also Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1344 (Fed.Cir.2008) (agreement was not a procurement contract where agreement “did not provide for transfer of goods or services to the government, there was no evidence of a buyer-seller relationship, and the government did not receive a direct benefit”); Institut Pasteur v. United States, 814 F.2d 624, 627 (Fed.Cir.1987) (governmental procurement contracts are typified by “a buyer-seller relationship and an expenditure of government funds”). 40 The observation finds support in the General Procurement Law, one purpose of which is “getting the maximum benefit from the purchasing power of the State.” S.F.P. § ll-201(a)(7). We also disagree with the MdTA that the Agreement was “a contract to procure the Lodge’s services in defeating pending collective bargaining legislation.” In its memorandum to the circuit court, the MdTA characterized the Agreement as “a private lobbying contract through which the Authority could use ... more than $12 million of public funds[ ] to seek to influence the General Assembly.” We agree with the Lodge that “[t]he MdTA’s assertion that the Agreement proposed that the MdTA spend $12 million to hire lobbyists is absurd.” The PPV program was not an elaborate means of compensat ¹⁸⁵ ing the Lodge for advocating the agency’s position to the Legislature. 41 The Agreement is unlike the contract at issue in Angelos , where, as the Court of Appeals noted, “[w]hile it may or may not technically be a ‘procurement contract’ within the meaning of the state procurement law,” the contingent fee contract was “a government contract for the procurement of legal services to be rendered to the State of Maryland.” Angelos, 364 Md. at 458 , 773 A.2d 504 .

In Angelos , there was clearly a buyer-seller relationship. In contrast, the Agreement did not create a buyer-seller relationship with a State agency. Accordingly, we conclude that the Board of Contract Appeals is palpably without jurisdiction over this matter. Our conclusion resolves the jurisdiction issue as well as the merits of the MdTA’s contentions on this point.

Because the Agreement is not a procurement contract, it is not subject to the General Procurement Law, nor is it an ultra vires hiring of lobbyists, beyond the scope of the agency’s enumerated powers. 3. Collective Bargaining The Authority maintains that “[a]n agreement between a state government agency and its employees on a collective basis to establish employee working conditions” is “a collective bargaining agreement.” In support of its motion to dismiss, the MdTA contended below that, because the Agreement called for the creation of a take-home vehicle program, it was an agreement between the MdTA and its employees regarding the “terms and conditions of employment.” It asserted: “Where a union seeks to enforce an agreement with a state government employer concerning terms and conditions of employment, that agreement, if it is any agreement at all, is ¹⁸⁶ a collective bargaining agreement, and it may not be enforced absent fulfillment of the statutory preconditions” prescribed in the State Personnel and Pensions (“S.P.P.”) Article of the Maryland Code (2009 Repl.Vol.), governing collective bargaining for State employees. On appeal, the MdTA observes that “[t]he Lodge and the Authority Police officers self-evidently did not have the right to bargain collectively, which is why they initially pursued legislation to obtain that right.” It insists that collective bargaining agreements “must fulfill numerous statutory conditions to be enforceable, and the purported agreement between the Authority and the Lodge fulfills none of them.” Claiming that the “preconditions to collective bargaining” were not met, appellees maintain that the Agreement is “unenforceable as against public policy.” The preconditions, discussed infra, were not satisfied, nor could they have been, because at the time MdTAP officers were not included in the program of collective bargaining authorized in the S.P.P. Article. In its memorandum to the circuit court, the Authority remarked: “It is an irony of this case ... that the very legislation that the FOP purportedly defeated pursuant to the ‘agreement’ would have removed one of the legal obstacles to the enforcement of the ‘agreement’ by providing for collective bargaining rights for MdTA police officers.” That irony was not lost on appellants, who contended in their opposition, and reiterated in their appellate brief, that “[t]he FOP currently does not have the right to bargain collectively, and the Agreement is not a collective bargaining agreement.” 42 Accusing appellees of “recharacterizing a simple contractual agreement as a ‘collective bargaining’ agreement,” they assert: “Nothing in the statute or case law excludes the ability to enter into a simple contract absent the availability of collective bargaining.

The MdTA is assuming ¹⁸⁷ that collective bargaining is the sole manner in which to contract.” The first precondition to State employee collective bargaining cited by appellees is that “the employees at issue must have the right to bargain collectively.” For this proposition, the MdTA relies on McCulloch v. Glendening, 347 Md. 272 , 701 A.2d 99 (1997), and Office & Professional Employees International Union, Local 2 v. MTA, 295 Md. 88 , 453 A.2d 1191 (1982). The remaining preconditions enumerated by the Authority are drawn from the S.P.P. Article: Second, the employees must have elected an exclusive representative of their bargaining unit. See [S.P.P.] §§ 3-401 to 3-407. Third, the State Labor Relations Board must have certified the representative’s election. [S.P.P.] § 3-406.

Fourth, any agreement must have been reduced to a memorandum of understanding signed by the Governor of Maryland or a person the Governor designates to sign on his or her behalf. [S.P.P.] § 3 — 601(a)(2)(i). Finally, the agreement must be ratified by a majority of votes cast by employees in the bargaining unit. [S.P.P.] § 3-601(c). In our view, the Agreement was not subject to the requirements related to collective bargaining agreements. Therefore, the Authority’s claim fails on this basis.

In explaining our conclusion, we first review the Court’s jurisprudence on the subject of public employee collective bargaining, including McCulloch, 347 Md. 272 , 701 A.2d 99 , which is the principal case upon which the MdTA relies. McCulloch is part of an extensive Une of authority that originates with Mugford v. Mayor of Baltimore, 185 Md. 266 , 44 A.2d 745 (1945). In Mugford , taxpayer plaintiffs sued the City of Baltimore Department of Public Works and a union. Id. at 268 , 44 A.2d 745 .

The plaintiffs sought to void an agreement between the City and the union that recognized the union “as the collective bargaining agency for its members, consisting of street-cleaners and other employees of the City.” Id. at 270 , 44 A.2d 745 . The plaintiffs successfully obtained an order declaring the ¹⁸⁸ agreement invalid, but they challenged on appeal a portion of the order that declined to forbid a scheme whereby employee members of the union could have their union dues deducted directly from their paychecks and remitted to the union “ ‘upon a purely voluntary basis, terminable by any employee at any time.’ ” Id. at 269 , 44 A.2d 745 (emphasis omitted). Before considering the plaintiffs’ contentions (and ultimately affirming the circuit