Maryland Port Admin. v. John W. Brawner Contracting Co., Inc., 138
Citation | 303 Md. 44,492 A.2d 281 |
Decision Date | 01 September 1984 |
Docket Number | No. 138,138 |
Parties | MARYLAND PORT ADMINISTRATION et al. v. JOHN W. BRAWNER CONTRACTING COMPANY, INC., et al. , |
Court | Maryland Court of Appeals |
William A. Kahn, Asst. Atty. Gen., Baltimore , for appellant.
David M. Layton, Towson (Wallace Dann, Towson, on the brief), for appellee, John W. Brawner Contracting Co., Inc.
John H. Thornton, Salisbury (Cullen, Clark, Insley & Hanson, Salisbury, on the brief), for appellee, J. Roland Dashiell & Sons, Inc.
Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.
COMAR 21.05.02.12D states relative to State contracts:
(Emphasis added.)
We shall here hold that the regulation means what it says when it specifies, "Changes in price are not permitted." Hence, we shall reverse the judgments of the trial court.
We have here an appeal on behalf of State agencies in each of two cases which were consolidated for consideration in the Circuit Court for Baltimore City. That court affirmed decisions made by the State Board of Contract Appeals.
Maryland Code (1957, 1981 Repl.Vol., 1984 Cum.Supp.) Art. 21, entitled "Procurement," was enacted by Ch. 775 of the Acts of 1980. Except for § 2-301(a), specifying that the Board of Public Works and certain departments were to "adopt regulations to carry out the provisions of th[at] article" by December 1, 1980, it became effective July 1, 1981.
Pursuant to the provisions of Joint Resolution No. 28 of the Acts of 1977, a Purchasing and Procurement Policies Task Force was appointed by the Speaker of the House of Delegates and the President of the Senate. Among other things, the resolution referred to the fact that the American Bar Association had "released for study a Model Procurement Code which [was then] being examined in detail by a Special Committee on State and Local Public Contract Law formed by the Maryland State Bar Association and which [was then] also being reviewed by other professional associations and government groups...." A proposed act, basically in the form of the present Art. 21, was appended to the final report of the Task Force filed on March 19, 1979. The report indicates that its original proposal, embodied in Senate Bill 748 of the 1978 session, "which ultimately failed to pass," "was modeled after the American Bar Association's Model Procurement Code." The report is silent as to the issue presented in the case at bar.
Art. 21, § 3-202 pertains to competitive sealed bidding. Subsection (h) stated at the time here relevant, "After bid opening, correction or withdrawal of bids may be allowed only (1) if permitted by the regulations of the department, and (2) upon written approval by the State Law Department." 1 ] It differs from § 3-202(6) of the American Bar Association Model Procurement Code approved in February 1979. The latter states:
(Bracketed word in original.)
It will be noted that the latter has a provision in it forbidding changes in bid prices.
Subsequent to the enactment of Art. 21, the Board of Public Works and certain other agencies adopted COMAR 21.05.02.12D, which we have heretofore quoted. As we have indicated, it contains a provision forbidding changes in price. Accordingly, it differs from Recommended Regulation R3-202.13.5 of the American Bar Association Recommended Regulations, which states:
The absence of a provision relative to changes in price undoubtedly is because this was covered in the recommended code provision and thus it was unnecessary for it to be in the regulation.
The American Bar Association Model Procurement Code states, "Code Commentary is used, where appropriate, to explain the rationale underlying various Sections, to aid in the interpretation of the statutory language, and to provide guidance in the development of regulations." The commentary to § 3-202(6) in the Model Code reads in part:
Appellee John W. Brawner Contracting Company, Inc., was the low bidder for construction of the Marine Service Building at the Dundalk Marine Terminal of the Maryland Port Administration (MPA). After the award of the contract to Brawner, it discovered an arithmetical error of $10,000 in its bid based upon a similar error of like amount in a quotation made to it by a subcontractor. The subcontractor notified Brawner and MPA of the error. A meeting was arranged between representatives of MPA, Brawner, and the subcontractor. The subcontractor produced its work sheet and explained the nature and extent of its error. Despite the error, Brawner and the subcontractor proceeded under the contract. Correction of the error would not have caused Brawner's contract price to equal or exceed that of the next lowest bidder. MPA's representative denied Brawner's claim for a change. His jurisdiction arose under Art. 21, § 7-201. Pursuant to § 7-202 Brawner appealed to the State Board of Contract Appeals.
The Board said:
It referred to that portion of Art. 21, § 1-201 which states:
The Board went on to state:
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