Blind Industries and Services v. DGS

• Citation: 371 Md. 221,808 A.2d 782
• Decision Date: 09 October 2002
• Docket Number: No. 32,32
• Parties: BLIND INDUSTRIES AND SERVICES OF MARYLAND v. MARYLAND DEPARTMENT OF GENERAL SERVICES.
• Court: Court of Appeals of Maryland

808 A.2d 782

371 Md. 221

BLIND INDUSTRIES AND SERVICES OF MARYLAND v. MARYLAND DEPARTMENT OF GENERAL SERVICES.

No. 32, Sept. Term, 2000.

Court of Appeals of Maryland.

October 9, 2002.

Thomas M. Wood, IV (Hugh M. Bernstein of Neuberger, Quinn, Gielen, Rubin & Gibber, P.A., on brief), Baltimore, for Petitioner.

Jennifer L. Forrence, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.; Laurie A. Lyte and Pamila J. Brown, Asst. Attys. Gen., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY ¹, RAKER, WILNER, CATHELL, and HARRELL, JJ.

BELL, Chief Judge.

We granted certiorari in this case to resolve whether the preference in favor of the supplies and services of Blind Industries & Services of Maryland ("Blind Industries"), the appellant, prescribed in Maryland Code (1957, 1995 Repl.Vol., 1999 Cum.Supp.) § 14-103 of the State Finance and Procurement Article,² applies when Blind Industries provides supplies and services not ordinarily provided by it and it provides the supplies and services as a broker, rather than as a manufacturer. The Circuit Court for Baltimore County answered, "no" and so shall we.³ Blind Industries, legislatively created to train and employ blind citizens, filed a declaratory judgment action in the Circuit Court for Baltimore County, in which it also sought injunctive relief against the Department of General Services, the appellee, in response to the appellee's refusal to award it, pursuant to the statutory preference it enjoys and, thus, without competitive bidding, the Statewide Office Supply contract. At the heart of the case was, and is, § 14-103. It provides, as relevant:

"The State or a State aided or controlled entity shall buy supplies and services from:

* * * * * *

"(2) Blind Industries and Services of Maryland, if:

"(i) Blind Industries and Services of Maryland provides the supplies or services; and

"(ii) State Use Industries does not provide the supplies or services...."

There was, to be sure, no disagreement as to the fact that Blind Industries was entitled to a preference; rather, the dispute revolved around to what the preference related. In other words, the issue the declaratory judgment action presented was the meaning and reach of the statutory preference. Relevant to the interpretation of § 14-103 is the manner in which the appellant proposed to provide the supplies and services, as well as what the appellant intended to provide. Traditionally, Blind Industries has operated manufacturing plants, producing various goods, at which blind citizens are employed in the manufacturing process. Among the goods manufactured, and relevant to the case sub judice are paper products, such as legal pads and easel paper, for office use. In addition to these products, the evidence presented at trial was, and the court found, that

"What Blind Industries proposes to do is to utilize the services of 6-10 individuals who are legally blind: (1) to staff an office with phones and computers, (2) to take orders from State agencies needing office supplies under the contract to be awarded, (3) to order the goods, primarily from a single third party, and (4) to have most of the goods drop shipped from the third party to the agency placing the order. Profits of a substantial nature would inure to the benefit of Blind Industries if the contract is awarded to it, which profits would be used to provide services to the blind people of Maryland for whom it exists and works, in addition to the employment of as many as ten (10) individuals, who are legally blind, and would thereby directly profit by having full time employment."[⁴]

Following a two day non-jury trial, the Circuit Court declared, "under the facts presented of record, Blind Industries and Services of Maryland ... is not entitled to a statutory preference by ... § 14-103 so as to require the State of Maryland to award it the Maryland State Office Supply Contract for the year 2000." In so declaring, the court rejected the appellant's argument that the preference applies whatever the source of the supplies and services provided, whether through manufacture, passthrough or subcontract, concluding, on the contrary, that it applied "to those goods and services being predominantly manufactured or otherwise provided by individuals who are legally blind." Relevant to that conclusion, the court pointed out, was the emphasis in the statutes on "articles `manufactured' by the blind." It cited Maryland Code (1957, 1997 Replacement Volume) Article 30, § 3, which provides:

"Powers of board of trustees of Blind Industries and Services of Maryland. The board of trustees of Blind Industries and Services of Maryland is authorized and empowered to apply such portion of their endowment fund and annual income as they may deem expedient to establish training and employment centers and to open a store for the sale of articles manufactured by the blind, and to extend the benefits of such centers and store to the adult blind of this State not resident in the institutions, on such terms and under such regulations as they may prescribe," and § 6(c) and (d):

"(c) Duties generally.—The Blind Industries and Services of Maryland shall be open for the labor and manufactures of all blind citizens of Maryland over eighteen years of age, who can give satisfactory evidences of character and of their ability to do the work required of them. All the profits arising from the operation of blind industries shall be used in furthering its usefulness.

"(d) Acquisition of property; supervision, etc., of blind industries—The board shall acquire suitable quarters by lease, purchase or otherwise in the State of Maryland and shall have full power to establish, maintain, direct and supervise all matters pertaining to blind industries, its maintenance and regulation, including the purchase of all machinery and materials as may seem to them suitable and necessary, and the barter or exchange of articles or manufactures entrusted to them for disposal." (Emphasis added).

Aggrieved by that judgment, the appellant noted an appeal to the Court of Special Appeals and, at the same time, filed in this Court a Petition for Writ of Certiorari. We granted the petition while the case was pending in the intermediate appellate court. Blind Industries v. DGS, 359 Md. 28, 753 A.2d 1 (2000).

The appellant submits that resolution of this case involves statutory interpretation. Section 14-103 is, to the appellant, "crystal clear." Thus, application of the canons of statutory construction to the interpretation of § 14-103, it insists, leads to a clear and equitable result, that it is entitled to the preference even though it does not manufacture all of the products it will supply pursuant to the contract. Where the words of the statute are clear and unambiguous and express a clear meaning, the appellant asserts, effect will be given to the statute; there is no occasion to resort to legislative history.

The key word is "provide," the appellant argues. Noting that it is defined by Black's Law Dictionary (6th Ed.1990), p. 1224, as "to make, procure, or furnish for future use," it states that "the statute's requirement that the State purchase any supplies or services `provided' by Blind Industries, specifically includes supplies and services which Blind Industries obtains (or procures) from third parties and then provides to the State." Indeed, as the appellant sees it, "[b]ecause the statute requires State agencies to purchase office supplies `provided' by Blind Industries, awarding the Office Supply Contract to anyone but Blind Industries would be an ultra vires act."

The appellee, of course, does not agree. It agrees with the judgment of the Circuit Court because it believes that the preference to which Blind Industries is entitled applies only to awards of contracts involving supplies that Blind Industries manufactures or assembles. This, it asserts, is the Legislature's intent, which is clearly discerned from the legislative history of the preference, the statutory context and the purpose of the preference. As to the latter, like the Circuit Court, the appellee finds relevant that the emphasis in passing the initial legislation, continued to today, citing and quoting COMAR 21.11.05.01.B (1),⁵ was on articles manufactured by blind individuals. Accordingly, it concludes:

"By attempting to take over the statewide contract for office supplies, for which Blind Industries would neither manufacture the goods provided nor add value to the goods provided, Blind Industries is overreaching its legislatively mandated preference."

Also relevant, the appellee submits, is the fact that when the preference was initially given to the appellant, the appellant was engaged in the manufacture of textiles, including uniforms, surgical drapes and surgical wraps. Furthermore, asserting that "[t]he Procurement Law generally requires that goods and services be purchased with competitive means to promote the integrity and maximize value to the State," citing § 11-201,⁶ the appellee cites Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129, 135, 747 A.2d 625, 628 (2000), quoting Tucker v. Fireman's Fund Ins. Co., 308 Md. 69, 75, 517 A.2d 730, 732 (1986), for the proposition that adopting the construction urged by the appellant would lead to "an illogical or unreasonable result, or one which is inconsistent with common sense."

Alternatively, the appellee contends that, apart from the statutory language and the legislative history, the § 14-103 preference simply can not apply in the situation where the provider of goods and supplies is a mere broker of the goods and supplies. Such a construction of § 14-103, it asserts, is inconsistent with the procurement regulations applicable to the appellant, Chapter 05. of COMAR 21.11.,⁷ and would undermine the goals of State procurement, "to foster competition and to obtain the best value for the taxpayer."

"The...