Questar Builders, Inc. v. CB Flooring, LLC

HARRELL, J. Questar Builders, Inc. (“Questar”) is a general contractor hired to construct a luxury midrise apartment and townhome complex known as Greenwich Place at Town Center (“Greenwich Place”) in Owings Mills, Maryland. After receiving bids from three flooring subcontractors, Questar selected CB Flooring, LLC (“CB Flooring”) to install carpeting at Greenwich Place for a total price of $1,120,000. Another bidder, Creative Touch Interiors (“CTI”) submitted a proposal to ²⁴⁶ complete the project for a total price of $1,240,000 1 ; however, Questar rejected that bid in favor of CB Flooring’s lower bid. 2 On 29 September 2005, Questar and CB Flooring entered an agreement (the “Subcontract”), pursuant to which CB Flooring agreed to “[fjurnish all labor, materials, equipment and services necessary for and incidental to the execution and completion of all carpet and resilient flooring” for the project’s 120 garage townhomes and 212 apartments, as well as its common areas and storage rooms, in exchange for $1,120,000. The Subcontract provided that the agreement was to remain effective “through [ ] DURATION OF THE PROJECT.” The focal point of this litigation concerns Paragraphs 12 and 14 of the Subcontract.

Paragraph 12 provided in pertinent part: Breach: Failure of Subcontractor to perform Work in accordance with each and every term and provision of this Subcontract shall be deemed to be a breach of this Subcontract. In the event of any breach, Contractor may avail itself of any or all of the following remedies: ... (d) to terminate this Subcontract by written notice and take over all or any work tools, equipment, materials and, which shall be effective upon receipt by Subcontractor, supplies of Subcontractor and complete the Work by whatever means Contractor deems appropriate, whereupon Subcontractor shall receive no further payments until the work is completed and shall be fully liable for any costs in excess of the Subcontract sum (Paragraph 2 hereof)[ 3 ] resulting from ²⁴⁷ Contractor’s completing the Work (if Subcontractor is not in breach then stick termination shall be deemed termination for convenience pursuant to Paragraph H hereof). ... (italics added).

Paragraph 14 provided: Termination for Convenience: If this Subcontract Agreement is terminated for convenience, Subcontractor shall be entitled, as its sole compensation, to be paid that portion of the total price provided in this Subcontract Agreement that is equal to the reasonable value of the authorized materials, equipment and incidentals furnished and delivered to the job site prior to the termination plus the reasonable value of properly authorized materials fabricated and properly stored (“Stored Materials”) by Subcontractor prior to the termination, and of properly authorized special inventory items specifically purchased (“Special Inventory”) by the Subcontractor for this project prior to the termination. The Subcontractor shall only be paid for Stored Materials and Special Inventory after the Subcontractor has delivered, at its expense, such Stored Materials and Special Inventory to a location specified by the Contractor and the Contractor has inspected and acknowledged in writing the acceptance of the Stored Materials and Special Inventory. Three additional provisions of the Subcontract are also relevant to this matter. First, Paragraph 7 provided: Changes: Contractor may, at any time, unilaterally or by agreement with Subcontractor, make changes in the Work.

Any change order or agreement shall be in writing. Subcontractor shall perform the Work as changed without delay. Subcontractor shall be entitled to an equitable adjustment pursuant to Paragraph 13 hereof if the change involves an adjustment in the Subcontract sum (Paragraph 2 hereof) or the time of performance (Paragraph 4 hereof) [ 4 ]. Second, Paragraph 13 provided, in pertinent part: ²⁴⁸ Settlement of Disputes and Claims: (a) With respect to any dispute between Contractor and Subcontractor or any Claim by Subcontractor, Contractor shall make a good faith, unilateral determination as to the equitable adjustment, if any, to be allowed, and issue a decision which shall be followed by Subcontractor.

Subcontractor shall continue to perform the Work without deficiency, interruption or delay, pending such determination. If Subcontractor’s claim is allowed by Contractor or by arbitration as provided for in Paragraph 1[6 5 ] hereof, Subcontractor shall be entitled to an equitable adjustment in the Subcontract sum (Paragraph 2 hereof) and/or the Subcontract time of performance (Paragraph 4 hereof) as its sole remedy. Notification of any such claim for equitable adjustment must be made in writing with complete supporting data within twenty (20) days of Subcontractor’s knowledge of the claim. Finally, Paragraph 16 expressed the parties’ mutual agreement to arbitrate all disputes concerning amounts less than $50,000, as well as Questar’s right to elect arbitration for disputes concerning amounts greater than $50,000.

The complicated series of events from which this appellate “magic carpet ride” springs began even before the Subcontract was signed. The architectural drawings that Questar supplied to CB Flooring, upon which CB Flooring based its bid, specified that Shaw Custom (“Shaw”) “field” carpet was to be used in the corridors of Greenwich Place. The drawings did not indicate that “border” carpet would be installed in the corridors. Yet, the Subcontract, when drafted by Questar, plainly called for CB Flooring to install border carpet.

The CB Flooring salesmen reviewing the draft Subcontract realized the discrepancy and sought to strike-out this proposed requirement; however, he failed to notice that his proposed change was not incorporated in the final draft. ²⁴⁹ In its executed form, the Subcontract required CB Flooring to install field and border carpets in the corridors of Greenwich Place and specified that the carpeting would be the same as the carpeting at Russett at Concord Park (“Concord Park”), a similar residential complex developed by Questar. The parties now agree that the corridors of Concord Park were furnished with Shaw field carpet and Bigelow Preview II (“Bigelow”) border carpet. Matters became more complicated after execution of the Subcontract when the interior design firm working on the Greenwich Place project changed the carpets to be installed in the clubhouse and corridors from Shaw and Bigelow carpets to Bentley Prince Street (“Prince Street”) 6 field carpet with Bentley New Stratford (“New Stratford”) border carpet. In December 2005, the interior designer issued a set of plans, referred to as ID Drawings 7 (the “70% ID Drawings”), specifying Prince Street as the new field carpet.

The plans wore only 70% complete and did not include any change with respect to the border carpeting; however, approximately one month later, the interior designer issued a complete set of plans (the “100% ID Drawings”), specifying New Stratford as the new border carpet. 8 Before CB Flooring responded to either set of ID Drawings, however, Questar contacted CT1 about installing carpeting at Greenwich Place, assertedly because it was “trying to keep CB Flooring honest” in the event that CB Flooring requested more money on account of the carpeting changes advanced by the interior designer. CTI submitted a new bid to Questar, proposing to install carpeting at Greenwich Place for ²⁵⁰ $1,119,000; however, CTI’s figures were based on the Shaw and Bigelow carpets used at the Concord Park project, not the Prince Street and New Stratford carpets specified by the ID Drawings. On 23 February 2006, CB Flooring, as anticipated, submitted a change order requesting an upward adjustment of $33,566 to the Subcontract price. Four days later, Questar sent an unexecuted subcontract to CTI, pursuant to which CTI would install carpeting at Greenwich Place in exchange for $1,120,000.

On 3 March, CB Flooring, citing a mathematical error, submitted a revised change order to Questar, changing its requested adjustment from $33,566 to $103,371 above the original Subcontract price. Shortly thereafter, Charles Bode, CB Flooring’s Vice President, spoke by telephone -with Donald Richards, Questar’s Vice President and Production Manager, about the requested adjustment. Bode and Richards testified to quite different recollections of what transpired in that conversation. In any event, Bode asked Richards to call him back later in the week so that they could discuss the matter further, but Richards did not do so.

Instead, in a letter dated 23 March 2006, Questar’s Senior Vice President, Frank Maccherone, notified CB Flooring that Questar was terminating the Subcontract. In the termination letter, Maccherone stated that the termination was for cause, charging that CB Flooring materially breached the Subcontract by refusing to perform; however, he iterated that, even in the absence of a breach by CB Flooring, Questar nevertheless enjoyed a right to terminate the Subcontract for convenience under Paragraph 14, entitling CB Flooring to no compensation. The letter also accused CB Flooring of acting in bad faith by using the interior designer’s changes to seek an unwarranted increase in the Subcontract price. After terminating its agreement with CB Flooring, Questar entered a subcontract with CTI on 5 April 2006, pursuant to which CTI agreed to install the carpeting at Greenwich Place in exchange for $1,120,000 ($1,000 more than its February 2006 bid price).

This subcontract permitted CTI to install ²⁵¹ Bigelow border carpeting in the corridors, as opposed to the New Stratford border described by the ID Drawings. Ques-tar apparently did not seek the interior designer’s approval before deviating from the interior designer’s plans. Alleging that Questar terminated the Subcontract wrongfully, CB Flooring initiated a breach of contract action against the general contractor in the Circuit Court for Baltimore County in April 2006. 9 Chiefly, CB Flooring contended that, although it requested an upward price adjustment due to the interior designer’s change in carpeting, it did not refuse to perform its contractual obligation to install carpeting at Greenwich Place as asserted by Questar in the termination letter. CB Flooring denied that its request for an upward adjustment to the Subcontract price was made in bad faith.

Additionally, the subcontractor claimed that the termination for convenience clause, cited by Questar as an alternative basis for terminating the Subcontract, did not apply under the circumstances because Questar acted in bad faith by invoking the clause after scheming to hire CTI in its place. To that end, CB Flooring asserted that Questar created an uneven playing field by allowing CTI to base its February 2006 bid on Shaw and Bigelow carpets, as opposed to the Prince Street and New Stratford carpets described by the ID Drawings. The subcontractor also complained that CTI’s subcontract with Questar deviated unfairly from the ID Drawings by permitting CTI to install Bigelow border carpeting, as opposed to New Stratford border carpeting. Questar countered that Bode informed Richards during their March telephone conversation that CB Flooring would not perforin under the Subcontract unless Questar agreed to a price increase.

Questar determined that the price increase was not warranted under the circumstances. The general contractor also claimed that CB Flooring failed to attend weekly, on-site progress meetings as required by the Subcontract. Thus, so Questar’s defense proceeded, it justifiably ²⁵² terminated the Subcontract for cause. Alternatively, Questar postulated that Paragraph 14 of the Subcontract gave it the right to terminate the agreement at its convenience.

Questar claimed that this right was unlimited; however, it contended that, even if the court imposed some limitation on the exercise of the right, that limitation was satisfied because Questar lost confidence in CB Flooring’s ability to perform its obligations in a satisfactory manner due to the subcontractor’s absence from weekly on-site progress meetings and its delay in ordering carpeting. During the plaintiffs case-in-chief in the Circuit Court, CB Flooring adduced evidence that Shaw quoted a price of $15.89 per square yard, whereas Bentley quoted prices of $17.70 and $21.70 per square yard, respectively, for the Prince Street and New Stratford carpets. 10 Moreover, the subcontractor’s Senior Contract Administrator testified that the shipping costs associated with the Prince Street and New Stratford carpets are substantially higher than those associated with Shaw carpeting because the latter is manufactured in Georgia, whereas the former are manufactured in California. She also claimed that Bentley requires an expensive adhesive to install its Prince Street and New Stratford models. In addition, CB Flooring’s Senior Contract Administrator explained that Bigelow carpeting costs $7.29 per square yard.

She averred, therefore, that CB Flooring should have lowered the Subcontract price if, like CTI, CB Flooring was permitted to install Bigelow, instead of New Stratford, as the border carpet in the corridors of Greenwich Place. She testified also that the lead times between ordering and delivery for all of the carpets was six weeks or less and, thus, CB Flooring would not have had difficulty performing in time for Questar to meet its Memorial Day deadline for Greenwich Place’s Grand Opening. ²⁵³ Bode also testified for CB Flooring. He averred that he placed the call to Richards because he was concerned about rumors that Questar propositioned CTI about installing the carpeting at Greenwich Place after execution of the Subcontract; he emphatically maintained that he initiated the call, not Richards, as claimed by Questar. According to Bode’s recollection of their conversation, he never refused to perform under the Subcontract; he merely informed Richards that “reasonable men can resolve these differences” and asked Richards to call him later in the week to discuss the matter further, which Richards did not do.

Bode also stated that he informed Richards that CB Flooring could, if needed, substantiate its requested price increase. Furthermore, Bode stated that Richards never conveyed to him during their conversation that Questar was losing confidence in CB Flooring’s ability to perform its obligations in a satisfactory manner. Supporting Bode’s assertion in that regard, CB Flooring’s Field Supervisor testified that he occasionally visited the Greenwich Place site when he was in the area and no one from Questar ever expressed concern with CB Flooring’s absence from weekly on-site progress meetings. The Field Supervisor asserted that he and others from CB Flooring ordinarily begin attending progress meetings approximately four weeks before commencing work at a job site.

CB Flooring also adduced testimony from a salesperson with CTI who recalled being contacted by Frank Maccherone of Questar in January 2006 about submitting a new bid for installing carpeting in the Greenwich Place project. She testified that Maccherone instructed her to “revise [her] pricing” from the earlier bid of $1,240,000 that she submitted in summer 2005; however, he authorized her to base the new bid on the Shaw and Bigelow carpets, as opposed to the Prince Street and New Stratford ones contemplated by the recently issued ID Drawings. She also averred that she felt “uncomfortable” when Maccherone later asked her “for a fax stating that the border carpet (Bigelow) is the same quality and price as the Bentley [New Stratford]” because, according to her, the Bigelow was substantially cheaper. ²⁵⁴ Questar called Frank Maccherone as its first witness in its defense case. When asked about CB Flooring’s absence from weekly progress meetings, he testified: [Attendance at these progress meetings is a requirement, particularly when, you know, we have sub[contractor]s that their work is upcoming.

We know there’s lead times. We know there’s demanding scheduling items that need to be discussed, reviewed, to make sure that we’re not gonna get hung up on the actual completion and opening of our project. That was very much on my mind. I think CB [Flooring] was certainly capable of doing the job, but they just weren’t indicating to me, to us, that they were focused on this job.

I don’t know if they were too big, if at that particular time they had other things going on. But we couldn’t get their attention to our project, and that was very much of concern to me. He explained that he became even more concerned when he did not hear from CB Flooring after the subcontractor received the 70% ID Drawings and, therefore, he asked Ques-tar’s Senior Superintendent for the Greenwich Place project to contact CB Flooring. According to Maccherone, the Superintendent informed him that CB Flooring anticipated requesting an upward adjustment to the Subcontract price.

That news caused him to question whether CB Flooring intended to use the carpeting change as an opportunity to take advantage of Questar. Moreover, he became even more worried when Questar did not hear from CB Flooring in response to the 100% ID Drawings. He stated that custom commercial field carpets have a 12 to 16 week order-delivery lead time and, thus, he was concerned that Questar would not be able to finish installing the carpeting at Greenwich Place before the complex’s scheduled Memorial Day Grand Opening. He averred further that, when CB Flooring finally submitted its change order for an upward adjustment of $103,000, he instructed ²⁵⁵ Richards to request supporting documentation from the subcontractor.

When CB Flooring did not provide it, Maccherone refused the adjustment. He directed Richards to inform CB Flooring of the refusal, and when Bode indicated to Richards that CB Flooring would not perform, he decided to terminate the Subcontract. Maccherone also explained how Questar’s subcontract with CTI came to permit CTI to install Bigelow border carpeting, as opposed to the New Stratford carpeting contemplated by the ID Drawings. According to him, he informed CTI’s salesperson that the subcontract could call for Bigelow carpeting if she could substantiate that the carpets were comparable in price and quality; otherwise, he could not allow the subcontract to vary from the ID Drawings.

He averred that the salesperson indicated to him that the quality was the same, but did not provide him with any information on the price. Nevertheless, he permitted the change because he understood the carpets to be of comparable price and the “blended” price that she quoted him for Prince Street and Bigelow carpets was within Questar’s budget for the project. Seeking to justify that CTI’s January 2006 proposal was not based on the ID Drawings, Maccherone claimed that he did not ask CTI to base its bid on erroneous specifications; however, he conceded that CTI was not instructed to resubmit a bid based on the ID Drawings. He admitted that he did not receive any independent third-party verification from CTI that the Bigelow border was of comparable quality and price to the New Stratford border.

Although the owner of Greenwich Place approved the carpet switch, Maccherone could not recall informing the interior designer that CTI’s subcontract replaced the New Stratford with Bigelow. CB Flooring’s counsel’s cross-examination of Maccherone also revealed a dispute over whether the draft subcontract that Questar sent to CTI on 27 February 2006 contained a provision allowing CTI to install the Bigelow border. CB Flooring sought to show that Maceherone’s asserted efforts to reconcile the prices and qualities of the New Stratford and ²⁵⁶ Bigelow carpets were nothing more than a ruse to justify, post hoc, Questar’s allowing CTI to install the Bigelow. CB Flooring’s counsel pointed out to Maccherone that the subcontract with CTI, although signed on April 5, was dated February 27 and contained the clause permitting the Bigelow border.

Maccherone responded that Questar prepared the document on February 27, but substantial changes occurred between then and the subcontract’s signing by CTI. One change was the substitution of Bigelow carpeting for New Stratford carpeting; however, the parties did not change the date of the document as they made revisions before signing. 11 In addition, CB Flooring’s counsel reminded Maccherone of his earlier testimony that custom carpets generally have lead times of 12 to 14 weeks (which assertedly caused him to worry that CB Flooring would not be able to complete its project in time for Greenwich Place’s Memorial Day opening). When questioned further about the project’s timing, Maccherone acknowledged that a 12 to 14 week lead time would not have permitted CTI to finish the project in time, considering that CTI signed its subcontract in early April and its salesperson represented that CTI would not order any carpeting until the subcontract was signed. ²⁵⁷ Richards also testified for Questar as to his recollection of his telephone conversation with Bode. Richards averred that he called Bode, after Maccherone “absolutely” denied CB Flooring’s change order.

Bode was not in the office at the time, so he left a message for Bode. Bode later returned his call. Richards claimed that he informed Bode of the denial and asked him whether CB Flooring still would perform. He also stated that he informed Bode of Questar’s general concerns about what it perceived as CB Flooring’s inattentiveness to the project.

When asked how Bode responded, Richards explained: First with regards to the lack of focus, [Bode] realized that he had some internal coordination issues, you know, between the estimating department, their field coordinator, the sales representative, his internal team, recognized that he had some issues and that he would work on that. Really it didn’t give me a comfort level at all that anything was gonna change there, just recognizing that he had some issues there. And clearly told me that he felt there was a—a warranted dollar change, and it was in the magnitude of $103,000, and that he clearly would not proceed to do the work without a signed change order in that amount of money. Like Maccherone, Richards also testified that generally there is a 12 to 14 week lead time for custom commercial carpets.

He averred that his concern over the lead time, on two occasions, prompted him to place a telephone call to CB Flooring’s Field Supervisor and request the Field Supervisor’s presence at weekly progress meetings, but that no one from CB Flooring ever attended. As part of its defense case, Questar also adduced evidence that the there was no price difference between the Shaw and Prince Street carpets and that the combined price of Prince Street and New Stratford was comparable to the combined price of Shaw and Bigelow, contrary to CB Flooring’s evidence. Additionally, the general contractor adduced evidence that, before it submitted its initial bid, CB Flooring performed ²⁵⁸ a site inspection of the carpeting at the Concord Park project, thus putting the subcontractor on notice that border carpeting would be included in the Subcontract. Finally, it was revealed that CB Flooring’s change order included 100% of the costs associated with the Prince Street and New Stratford carpets, but subtracted only 90% of the costs associated with the Shaw carpeting.

CB Flooring’s Senior Contract Administrator sought to justify the discrepancy by claiming that a 90% credit is standard industry practice where the general contractor changes the materials initially contemplated; however, she acknowledged that the Subcontract did not contain a provision authorizing CB Flooring to add to its change order 10% of the costs of the Shaw carpeting. She also acknowledged that CB Flooring did not explain the 90% credit to Questar. After closing arguments, the trial judge rendered her ruling orally from the bench. She observed that CB Flooring made a mistake in its summer 2005 bid, which translated to a mistaken belief as to its obligations under the Subcontract.

She also recognized the possibility that CB Flooring might not have been entitled to its requested price increase, given the subcontractor’s own error and the conflicting evidence adduced by both parties on the pricing of the carpets. Penultimately, the trial judge found that CB Flooring did not breach the Subcontract. 12 Specifically, she credited Bode’s testimony that he did not communicate to Richards that CB Flooring would not perform under the Subcontract. She “d[id] not believe that [Richards] told [ ] Bode in their conversation that the defendant was ordering the subcontractor to proceed as directed by the [Subcontract.” The trial judge recognized that the Subcontract required CB Flooring to attend weekly on-site progress meetings, but concluded that CB Flooring’s absence from those meetings did not constitute a material breach of the Subcontract. She noted that the ²⁵⁹ subcontractor’s Field Supervisor occasionally visited the Greenwich Place site and no one from Questar complained to him about the subcontractor’s absence from the meetings.

She rejected Questar’s assertion that it directed CB Flooring representatives to attend the meetings. The trial judge also found that CB Flooring did not attempt to use the change order as leverage and did not jeopardize the timely performance of the Subcontract. With respect to Questar’s alternative defense that Paragraph 14 conveyed a right to terminate the Subcontract for convenience, the trial judge rejected Questar’s contention that it enjoyed a right to terminate the Subcontract for any reason. She considered and rejected Questar’s assertion that its subjective loss of faith in CB Flooring’s ability to perform satisfactorily (or for the agreed upon price) satisfied whatever implied limitations there might be on the exercise of the termination for convenience clause, noting that Questar’s “gut feeling” was not sufficient. 13 She credited the testimony of CB Flooring’s Senior Contract Administrator, who explained that the lead times for all of the custom carpets was six weeks or less.

She also credited the testimony of CTI’s salesperson, noting that the salesperson felt “uncomfortable” when Maccherone asked for confirmation that New Stratford and Bigelow carpets were of comparable price and quality. The trial judge rejected much of the testimonies of Maccherone and Richards. Specifically, she observed: I don’t think [Richards] made any effort to contact the plaintiff regarding any unhappiness about anything, including not having received a proposed change order sooner. I don’t think that he communicated that he had lost confidence in the plaintiff in any way.

Pm not even sure he had lost confidence in the plaintiff before perhaps being advised by Mr. Maccherone that that’s what his attitude should be. ²⁶⁰ It did not seem that Mr. Richards had communicated to the plaintiff that he was ordering them to proceed or that the defendant was contemplating terminating the contract or that he was demanding proof of what the plaintiff claimed was necessary in the change order. And although [Questar’s counsel] has suggested that Mr. Maccherone was not scheming when he submitted the interior design drawings to CTI, it appears to the court otherwise. The suggestion that there was nothing sinister or unusual about Mr. Maccherone’s communications with [CTI’s salesperson] in January and February is rejected. There was— it was I think very unusual for a general contractor to behave as Mr. Maccherone did in this case.

It was out of the ordinary to send the interior design drawings to a competitor of the subcontractor who had a written and signed contract with the general [contractor] and had never indicated any reluctance to perform that contract as agreed. If the defendant thought that it was commercially unreasonable or had been an inordinately long time to respond with proposed change orders, that period in late January and February, I can’t understand why the defendant never communicated that. Accordingly, the trial judge concluded that Questar improperly terminated the Subcontract and awarded more than $243,000 in expectation damages to CB Flooring. 14 Following the resolution of a series of post-judgment motions not pertinent here, Questar noted a timely appeal to the Court of Special Appeals. In its brief in that court, Questar presented the following questions: ²⁶¹ 1.

Whether a “termination for convenience” clause contained in a contract between private parties is enforceable under Maryland Law[?] 2. Whether the trial court erred by holding, as a matter of law, that the parties’ “termination for convenience” clause was inapplicable and did not allow Questar to terminate the parties’ Subcontract without cause[?] Before argument in the intermediate appellate court, this Court, on its initiative, issued a writ of certiorari. Questar Builders, Inc. v. CB Flooring LLC, 406 Md. 744 , 962 A.2d 370 (2008). For the reasons that follow, we hold that the “termination for convenience” clause in this case may be enforceable, subject to an implied obligation to exercise the right to terminate in good faith and in accordance with fair dealing.

We also hold that, on the present record, it is not clear that the clause was inapplicable under the circumstances found by the trial court. Accordingly, we vacate the Circuit Court’s judgment and remand the case to the Circuit Court to resolve the remaining, potentially relevant discrepancies in the parties’ accounts of the events leading up to the termination of the Subcontract and to enter a judgment that is consistent with this Opinion. 15 Standard of Review Under Maryland Rule 8—131(c), When and action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. “ ‘The deference shown to the trial court’s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions.’ ” Karsenty v. Schoukroun, ²⁶² 406 Md. 469, 502 , 959 A.2d 1147, 1166 (2008) (quoting Griffin v. Bierman, 403 Md. 186, 195 , 941 A.2d 475, 480 (2008)). We review the lower court’s legal conclusions for legal error under a non-differential standard.

Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879, 883 (2004). “The interpretation of a contract ... is a question of law.” Sy-Lene of Wash., Inc. v. Starwood Urban Retail II, L.L.C., 376 Md. 157, 163 , 829 A.2d 540, 544 (2003). Analysis I. Courts and commentators generally agree that the concept referred to here as contract “termination for convenience” developed during (and in the years following) the American Civil War as a tool for the U.S. government to avoid costly military procurements that were rendered unnecessary by changing war-time technology or by the cessation of conflict. Krygoski Constr.

Co. v. United States, 94 F.3d 1537, 1540 (Fed.Cir.1996); Torncello v. United States, 231 Ct.Cl. 20 , 681 F.2d 756, 763-64 (1982); John Cibnic, Jr. et al, Administration op Government Contracts 1049 (4th ed. 2006); Maj. Bruce D. Page, Jr., When Reliance is Detrimental: Economic, Moral, and Policy Arguments for Expectation Damages in Contracts Temninated for the Convenience of the Government, 61 A.F.L.Rev. 1, 2 (2008). For example, because commanders did not know how long their men would be stationed in a particular area, in 1863 the U.S. Army promulgated a rule requiring that all of its contracts with subsistence stores include a provision allowing the Commissary-General to terminate the contract at his discretion. See generally United States v. Speed, 75 U.S. (8 Wall.) 77, 82 , 7 Ct.Cl. 93 , 19 L.Ed. 449 (1868) (describing such contracts).

In United States v. Corliss Steam-Engine Co., 91 U.S. 321 , 23 L.Ed. 397 (1874), a case often cited as the legal cornerstone of the federal government’s right to terminate a contract for convenience, 16 the Secretary of the Navy terminated the ²⁶³ Navy’s contract with a ship builder, asserting that the Navy no longer needed the requested ships due to the end of the Civil War. Corliss, the ship builder, had not performed the extent of its contractual obligations; nor had it been paid in full by the government. Nevertheless, Corliss proposed settlement terms for the work it completed up to the point of termination, and the Secretary accepted the terms. Corliss rethought its decision, deciding that settling with the Secretary was imprudent, and sued the government, claiming that the settlement agreement was invalid and seeking the full value of the contract.

Corliss, 91 U.S. at 322 . In affirming the Court of Claims’s decree denying Corliss’s claim, the Supreme Court reasoned that the cessation of the war rendered the contract “unnecessary,” and, thus, “under the circumstances,” the Secretary lawfully settled with Corliss for less than the full value of the contract. Id. at 323 . The Court, going beyond its core holding, emphasized the need for the government to have broad discretion with respect to terminating its war-time contracts: Contracts for the armament and equipment of vessels of war may, and generally do, require numerous modifications in the progress of the work, where that work requires years for its completion.

With improvements constantly made in shipbuilding and steam-machinery and in arms, some parts originally contracted for may have to be abandoned, and other parts substituted; and it would be of serious detriment to the public service if the power of the head of the Navy Department did not extend to providing for all such possible contingencies by modification or suspension of the contracts, and settlement with the contractors. Id. at 323 . Justified by Corliss, the federal government expanded its reliance on broad powers to terminate many of its contracts ²⁶⁴ during and after World War I. See Krygoski Constr. Co., 94 F.3d at 1541 (noting that “[a]fter World War I, the government terminated contracts in large numbers”); Torncello, 681 F.2d at 764 (noting that “[d]uring World War I, the Corliss doctrine expanded into a very important part of military procurement”).

In 1917, Congress passed the Urgent Deficiency Appropriation Act, authorizing the President “to modify, suspend, cancel, or requisition any existing or future contract for the building, production, or purchase of ships or material” ordered for the war effort. Pub.L. No. 65-23, 40 Stat. 182. The act directed the President to provide “just compensation” to companies whose war-time contracts were cancelled. Id.

Assessing what constituted just compensation under the act, the Supreme Court held, in Russell Motor Car Co. v. United States, 261 U.S. 514, 523 , 43 S.Ct. 428 , 67 L.Ed. 778 (1923), that “[a] court must consider the value of the contract at the time of its cancellation, not what it would have produced by way of profits ... if it had been fully performed.” In what would become the basis for denying expectation damages to companies whose contracts were terminated pursuant to modern termination for convenience clauses, the Court observed that, because Russell Motor Car presumably knew that its contract could be terminated pursuant to statute, the “possible loss of profits, therefore, must be regarded as within the contemplation of the parties.” Russell Motor Car Co. 261 U.S. at 523 , 43 S.Ct. 428 ; see also Page, When Reliance is Detrimental, at 6 (referring to the Court’s comment regarding the parties’ contemplation of the possibility of lost profits as “what would prove to be a recurring theme”). Although most terminations of government contracts following the Armistice of 1918 were pursuant to statutes such as the Urgent Deficiency Appropriations Act, some agencies terminated their unneeded contracts under broadly worded, express contractual provisions. See Page, When Reliance is Detrimental, at 6. For instance, in Davis Sewing Machine Co. v. United States, 60 Ct.Cl. 201 (Ct.Cl.1925), the War Department ordered 75,000 pistols from a manufacturer in July 1918. ²⁶⁵ The Department inserted a provision in the contract that provided: Termination.—This contract being necessitated by a state of war now existing, it is desirable and expedient that provision be made for its cancellation upon fair and equitable terms in the event of the termination or limitation of the war, or if in anticipation thereof or because changes in methods of warfare the Chief of Ordnance should be of the opinion that the completion of this contract has become unnecessary.

It is therefore provided that any time, and from time to time, during the currency of this contract, the Chief of Ordnance may for any of the causes above stated notify the contractor that any part or parts of the articles then remaining undelivered shall not be manufactured or delivered. 60 Ct.Cl. at 203 . Applying the rationale of Russell Motor Car Co., the Court of Claims resolved that the manufacturer could not recover expectation damages from the contract’s termination because the contract’s terms contemplated the possibility of lost profits. Id. at 216-17 . The winding-down of procurements after World War I also engendered the corollary concept of constructive termination for convenience.

In College Point Boat Corp. v. United States, 267 U.S. 12 , 45 S.Ct. 199 , 69 L.Ed. 490 (1925), the Supreme Court held that a manufacturer of collision mats ordered by the U.S. Navy could not recover lost profits arising from the Navy’s instructing the manufacturer to cease production. The Navy did not assert its right to terminate the contract under Urgent Deficiency Appropriations Act until the manufacturer sued the Navy for breach of contract. College Point Boat Corp., 267 U.S. at 15-16 , 45 S.Ct. 199 . Nevertheless, the Court reasoned that the Navy could use its unconditional right to terminate the contract to excuse its failure to perform.

Id. The “direct predecessor of the modern termination for convenience clause” developed during the military build-up to World War II. Torncello, 681 F.2d at 765 . Mandatory in all ²⁶⁶ fixed-price supply contracts, the clause provided, in pertinent part: Termination for the convenience of the Government, (a) The Government may, at any time, terminate this contract, in whole or in part by a notice in writing from the Contracting Officer to the Contractor that the contract is terminated under this Article.

Id. (quoting 10 C.F.R. § 81.324 (Cum. Supp. 1938-43)). While this clause introduced the word “convenience,” the consensus remained that the government’s right to terminate a contract was justified by the exigencies and uncertainties of armed conflict.

See G.L. Christian & Assocs. v. United States, 160 Ct.Cl. 1 , 15, 312 F.2d 418 (1963) (noting that “[rjegularly since World War I, it has been a major government principle, in times of stress or increased military procurement, to provide for the cancellation of defense contracts when they are no longer needed”); Torncello, 681 F.2d at 765 (noting that wartime contractors during World War II “risked losing the benefits of full performance but only for the exigencies of war”). During the 1960s, however, the federal government’s use of similar termination for convenience clauses expanded beyond contracts needed to wage large-scale military operations; such provisions gained widespread use in civilian and peace-time military contracts. Torncello, 681 F.2d at 765 . Indeed, by 1967, the Federal Procurement Regulation made termination for convenience clauses mandatory in most fixed price supply contracts and construction contracts.

See Cibnic, Administration of Government Contracts, at 1050. At present, the federal government includes these clauses in a myriad of supply, construction, and research and development contracts. See 48 C.F.R. § 49.502 (2009). In its modern form, the clause ordinarily provides that the government may terminate “if the Contracting Officer determines that a termination is in the Government’s interest.” 17 See Krygoski Constr.

Co., 94 F.3d ²⁶⁷ at 1544; Custom Printing Co. v. United States, 51 Fed.Cl. 729, 783 (Fed.Cl.2002); see also 48 C.F.R. 52.249-1 to -5 (2009); accord 48 C.F.R. 52.212(Z) (2009) (providing for clause in contracts for “commercial items” that allows government to terminate “for its sole convenience”). As noted by Professor Cibnic, the result of the federal government’s expanded use of termination for convenience clauses is “that broad rights developed for war contracts have come to be applied to all types of contracts, civilian as well as military, in times of both peace and war.” Cibnic, Administration of Government Contracts, at 1050. Yet, as a general rale, contracts involving the U.S. government are interpreted (at least in theory) like any contract between private parties. See Lynch v. United States, 292 U.S. 571, 579 , 54 S.Ct. 840 , 78 L.Ed. 1434 (1934) (“When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.”); Ford Motor Co. v. United States, 378 F.3d 1314, 1320 (Fed.Cir.2004) (“In case in which the United States is a party to a contract, we apply general rules of contract construction.”); United States v. Bankers Ins.

Co., 245 F.3d 315, 321 (4th Cir.2001) (“It is well settled that, when the United States is a party to a contract, ordinary principles governing contracts and their interpretation remain applicable.”). Accordingly, federal courts have had difficulty reconciling contract provisions allowing the federal government to terminate at its convenience (in circumstances more mundane than the exigencies of war) with the common law rule that a valid contract must be supported by consideration and may not be illusory. See, e.g., Krygoski Constr. Co., 94 F.3d at 1541 ; Torncello, 681 F.2d 756 .

Balancing these two concepts, ²⁶⁸ federal courts, therefore, sought to protect the government’s right to terminate a contract for convenience by implying limitations on its use. By our reckoning, there are two competing analytical frameworks that evolved to limit the government’s right so as not to render a contract illusory. The first standard is the “changed circumstances” test articulated by a plurality of the U.S. Court of Claims in Torncello v. United States, 231 Ct.Cl. 20 , 681 F.2d 756 (1982). In Tomcello, the Navy entered a requirements contract 18 with a company, pursuant to which the company agreed to handle insect and rodent control at six Navy housing projects in the San Diego area. 681 F.2d at 757-58 .

As with the Subcontract at issue in the case before us, the termination for convenience clause in Torncello effectively allowed the Navy to control whether the pest control company ever performed under the contract. As it turned out, the Navy’s pest control needs were less than anticipated, and, thus, instead of using the company’s services, the Navy relied on the Department of Navy Public Works, which