projects that are at issue now forbade he came to the the bid and to this contract understanding that the contract included a dispute resolution mechanism but what power forbade he believed was specifically specifications section zero zero seven three eight four it lays out the dispute procedures and i'll be at they focus primarily on obligations at the contractor to make submissions the lead in preamble to it states that it dresses all claims and disputes without distinguishing that they whether they be balfour's or the cities when we look yes you're honest i don't but i don't understand is that seems like that's your merits argument right that the city had to go through this process before they took the money but what does that have to do with the jurisdictional question about whether you needed to exhaust correct your honor so if you look to the city charter which is the legislation that  ce the city with judicial authority that city charter provides a state right that balfour has and that state right is if the city chooses to include a contractual dispute resolution process they may but the charter itself is all encompassing it says all disputes in excess of ten thousand dollars i understand i do understand kind of your merits argument but it seems to me that if you want to exhaust you have to show that the agency to which you've been requirement that they that they have it up with you can see i don't that doesn't mean that the agency to which you've been directed doesn't have jurisdiction they don't have jurisdiction to take liquidated damages to the tune of but that's your merits argument that the agency did something it couldn't do it acted altered your rights and acted illegally but that's not the exception is for when you've been directed to take your claim to an agency that can't hear your claim they cannot hear my claim that they violated state rights and give me any adequate remedy they can't hear my claim that they violated my due process rights this city is not well number one they don't have that authority to address constitutional issues it's not a contractual issue that third dressing what we're arguing is that the city violated our due process rights and liberty interest violated our state rights by not having a hearing those are not things that they can afford  particularly where there's an irreparable harm when our business reputation is damaged as we've set forth in our briefs and in our complaint that the that the city has effectively created the damage balfour's reputation one that will follow bal for until this issue is resolved one that affects their ability to be pre qualified for other government contracts one that affects their ability to compete with other government soley case yes your honor but if you look at the here he case it goes on to expand and says a court has jurisdiction to review decisions where the agency exceeds its delegated powers or ignores a statutory mandate and the absence of a judicial review would sacrifice for obliterate a right created by the legislature that's exactly what happened here we have a legislator a legislated right to a hearing prior to them imposing damages upon us particularly those that cause or reparable harm do you have an i want to make sure i haven't missed something do you have in your brief somewhere this argument that the agency to which you can direct i guess i gather it's the department of public works and you go up the administrative process would bring you up to the director correct your honor have you explain somewhere why the director doesn't have jurisdiction to hear a constitutional claim not expressly in those terms of that your honor well that but that's the whole question in the case right whether the agency to which you've been directed has jurisdiction over the claimant i don't see any argument raised below or before us that the director of public works can't hear your case i believe your honor that the issue on appeal is not solely related to the d process question and whether the director has the jurisdiction here in the constitutionality of the issue i think the question is more much more complex than that i believe that the director had an obligation the city had an obligation to afford us the right which they denied we know that right to be heard before these damages had been imposed was taken away from us and because of that there is an irreparable harm that the director has no ability to remedy so is so is it your view that when ever a state agency acts unlawfully and causes harm administrative exhaustion is excused no your honor said our situation i think is one of those exceptional circumstances if you look at the other cases such as here e or the m t a case that came out of maryland those situations do not involve a scenario where this where the agency caus irreparable harm or took away a right that the party had to be heard both of those cases were in advance of damages being imposed or penalties being imposed against those other entities and those entities were seeking to avoid the process altogether we didn't seek to avoid this process until the city took the liquidated damages impose those liquidated damages against us because we had no ability then through the director to resolve the issue which is which is truly the irreparable harm that balfour suffers as part of a being a government contractor can contract as we lay out in a complaint contractor submit prequalification they disclose when liquidated damages have been imposed that can affect their ability to be pre qualified it can affect and determine whether they are qualified on a competitive selection it can it impinge upon their their interest and the issue here i think the crux of the issue here is the easy which the city could have remedied this problem there was no obligation as council contends for the city to impose liquidated damages now the city couldn't tell talent goes up and had a claim against balfour at the end of the project if they so choose to wait for the hearing until that time council mentions the eight fifty five project a third project and in that project that project was a year late the city didn't assess liquidated damages they're not compelled to do it and that's the issue the easy which they could have remedied this after a hearing after hearing before the director as set forth in the city charter and that's the proposition for which baltimore contractors stands that if the contract itself is somehow at odds with the city charter it must be conformed to meet it i contend that there is nothing at odds in the contract with the city charter i think the contract itself states plainly that we have the right to be heard before the damages are assessed but if we were to take septa cities position that they were not only authorized but mandated to take those damages that's at odds with the city charter and that charter should conform the contract so that bow for then ha the opportunity to be heard now seems like a very good argument for you to make in your administrative proceedings and then if you don't get satisfaction from there to a court if we were simply talking about liquidated damages as an amount of money twenty six million dollars that was being withheld and that it was simply the duration for which it was held that monetary relief could be satisfied i admit that could be resolved by payment of interest on top of the assessment return of the liquidated damages but that's not the issue the issues not the money or even the amount of money or the return ultimate return of the money it is right now it is happening now that balfour disclose if you win your claim you'll be in front of a district court arguing that you can calculate those damages a cost you this much in lost work we will have claims for lost interest on the money we will have claims for the other breaches of contract i fashion an argument that i wast project because of loss of bonding capacity in courts routinely say those arguments are speculative in your speculative because you don't know if you would have won the project anyways and even if you won the project you what happens when we have a situation where as you say it's not about the money it's not about us returns not about whether the interest is about these things i agree with the very real and very existential to any company particularly construction but what about the next your honor goes back to the city charter the city charter plainly states that we have a right to be heard that right was taken away from us if the city was not disqualify judicial power if the city charter did not exist and the city took our liquidated damages we would have a right to challenge that more quickly than what we have now we would also have the right to try to avoid the reparable harm that is being caused but because the state  general assembly enacted the city charter giving the city already to make these kinds of a decision at the first level but across all disputes that's a right that has been taken away from us and liquidated damages it may be a low bar burden of proof for the city simply proving that the contract exists proving that there is contract time that that has expired proving that there is a liquidated damage provision we have a right to defend ourselves we have a right to come in and justify why the time is not our responsibility and that's what was taken away from us and if after all of that if after all of that and the director still decides to liquidated damages at least we had the opportunity to be heard at least we had the opportunity to try and avoid irreparable harm  bad contractor in the liquidated damages are appropriately assessed against us but we still have a right to be heard if it is our rights are set forth starting with the with the city charter and do flow into these other concepts of due process and liberty interest and if if we had no irreparable harm then it would be a money damages case then it would be simply solved by interest on the money but that's not significant is that while maryland has not directly addressed a case like this where we contend and we think the record is clear that the city has pre determined the outcome of the claims is evidently biased against my client that the law in maryland is such that it does recognize that as an exception and as a court u s supreme court stated in the courtesy and administrative remedy may be inadequate where the administrative body has shown to be biased or has otherwise pre determined the issue before it that is what has happened here it is evident is evident in the communications that from the director all the way up to the person making the decision claiming that balfour defaulted on the contract but your says i think your merits issue the issue that you will be taking to this ministry to body if you have to exhaust is whether you are entitled to a hearing right whether and i don't know is there anything in the record suggesting that that issue has been predetermined the issue of whether we're entitled to a hearing has been pre determined because they've objected to it they've already said they have already stated that we are not entitled to a hearing and till after the contract is over even though they have assessed the liquidated damages the point about the pre determination is us going through the administrative process at this stage is a futile act we know what the outcome is they've already assessed in taking the liquidated damages that comes from the director assess the liquidated damages what biased means  nobody would ever have to go through an administrative exhaustive process because you're always challenging something the agency has already done i mean it doesn't that exception just totally defeat the rule it can't be enough that the agency has ruled against  because otherwise you have no complaint to bring to your honor i think it is a combination of all of the factors together it is not one single issue or one single event that has led us to this point of saying that the city has acted power probably without jurisdiction and that it cannot be sent back to the city because they have already determined the outcome it is the culmination of all of the factors put into play all of these situations put into play if the city had granted us a hearing before taking the liquidated damages we could have then challenge that but they chose not to my time is now expired thank you  and bell for bt to build a waste water treatment facility in baltimore the goal of that facility is to reduce nitrogen levels in the chesapeake so make the harbor more habitable from marine life time's of the essence with respect to this contract we had a december thirty one two thousand and sixteen consent decree requiring us to complete the project the city's credibility with its citizens with state and federal agencies with citizens of the state the region is on the in place for the claims of the contractor the liquidated damages provision in the contract is completely separate from that administrative process your honor and so the assessment of liquidated damages is done by operation of contractual language they have not completed the contract contract was to be completed by february twenty eighth two thousand and fifteen almost two years behind schedule the assessment of liquidated damages was done because they did not complete the contract by that date and what about the argument that entitled that the liquid is the city charter for his position that they're entitled to a hearing what do you cite for your position that they are not the liquidated damages provision in the contract your honor which is  i don't have the cite to the green book but it's a it's a separate provision in the contract now your honor that doesn't mean that they're not entitled to challenge the assessment of liquidated damages through up through the administrative process and they are your honor they are challenging the assessment of liquidity i'm just through the process they have a number of claims that are pending in that administrative process right now where they're saying we have you have delayed the project city you have  interfered with our completion of the project and therefore we're entitled to a compensable time extension they have a number of claims of fifty million dollars worth of claims in the ministry of process right now these are complex claims but they're in the process and they threw that in a straight process can receive all of the relief that they believe they're entitled to honor and if they don't get it through the administrative process which concludes with a hearing before the director  at the completion of the contract work then they can seek judicial review all of the all of the remedies that they're seeking are available to them to be clear but it is it's an important project for the city and the reason that we have this administrative process in place is to prevent exactly these sorts of disputes and litigation which would hinder the completion of this project so we we have a comprehensive review process in place it's a three level review do you national review is done through the engineer he tries to resolve the claim if it's not resolved to the satisfaction of the contractor then it goes to the second level reviewing fro again attempts to resolve the claim if it's not resolved then at the completion of the contract work the director has a hearing on the record and if they're not satisfied with the resolution at that hearing then they can these pipe supports were the responsibility of the designer or the contractor so the they always have they have this mystery a process they always have the right to judicial review all of  the remedies that they're seeking are available to them but unless and until they exhaust these remedies there's no subject matter jurisdiction of the district court there's a strong preference for administrative exhaustion  that took to qualify under that exception so that administrative exhaustion is excused you have to show both that the agency to which you've been sent basically the process to which you've been sent does not have jurisdiction over your claim it's futile because they can't address your claim and also that there's irreparable injury you need to show both that is my understanding i would have to show irreparable injury that just seems so odd to me i mean if you can you know if i have a claim against the department of public works and you're exhausted and proceeding says process as i have to go to the department of motor vehicles isn't it enough for me just to show well that's not doesn't make any sense they don't have jurisdiction over this dispute well what irreparable injury really comes down to this can you ultimately obtain the relief that you're seeking and when mr martin referenced the mccarthy case the the reason that the court found that mr mccarthy didn't or that mr mccarthy didn't have to exhaust his administrative remedies was because there was no way that he was going to get the relief that he believed he was entitled to through go by going through this process so ultimately you're talking about irreparable injury if there is a judicial if there's a process in place and in them for five million dollars one hundred million dollars so anyone that mean that you know ongoing project is this was would you then get a credit for five million dollars they submit bills to you and then they don't get paid again entitled to one point five million dollars for that work the city offset their credit for the record right correct you're right you're wrong about that assessment amount of facts so wrong that it constitutes a breach of the contract they still couldn't come to court else that's a claim that they have you're you are incorrect in assessing these liquidated damages and so they submit a claim and say you're incorrect and it goes through the process and ultimately they get judicial review of that claim your honor but in the meantime you still get we are suffering damages and they're not quantifiable because we don't i mean what are the damages to the city of not having the nitrogen levels in the bay at the level that we think they should be what are what are the damages to the city with  authority to do what it's doing and and expect much and i thought the question is is the agency to which you have been sent to exhaust your claim without jurisdiction to hear your claim or isn't right ok it doesn't matter whether what the city did was outside its lawful authority what matters is whether this director of what is it the director of public works correct has jurisdiction over these people's claims so if for example you aren't the director d p w would not have jurisdiction to decide you know a criminal case designated in the green book is the director of d p w that's and so i guess in the green book if we said look we we don't want any question a bias so we're going to send this over to the parking authority you could and we could we could we don't do it so folks would jurisprudential to designate then you would the city would actually have to vest them with jurisdiction directly hear the claim and that would be a weird choice to have the person in charge of parking do it but if they had jurisdiction and were vested with jurisdiction and were able to hear the claim and grant relief then that would be fine absolutely but it would be but the designation isn't what takes care of the problem it's the vesting of the designated agency with jurisdiction correct and that's done through the contract through the green book but the other point i want to make is that you know sophisticated party it's a multinational corporation it's a government contractor they do mr martin referenced the type of work that they do they read the contract they saw the administrative processes in place they saw the liquidated damages provision that's in place you know we haven't heard much about the liquidated damages provision and how it separate from the administrative process but that liquidated damages provision is in there they saw what they saw that if you don't complete the contract time you shall pay cited in the in our brief black letter law a breach of contract case doesn't turn into a due process case simply because you have breached contract with a government entity there's no unlawful taking here and regardless we have a comprehensive review process in place that allows for judicial review so they certainly are getting due process the other sorry lost my train of thought these allegations regarding mr martin refer to them regarding prequalification for forbids those are these are contingent allegations they're speculative allegations there's there's a heavy burden on for a con to show why it's entitle to make an end run around this administrative process and this is the second attempt to make an end run around the sinister process the idea that we can simply say  if we go and try to become pre qualified somewhere if that government looks and sees that there's an assessment of liquidated damages then this might happen those are contingent speculative allegations that certainly aren't the brief points to letters a letter from the director of d p w to the surety the city has a responsibility under the the language of the bond to notify the surety when there are problems with the contract and that's what the city did that wasn't a determination that was a letter outlining the city's position the city's concern there's no determination there and the same with letters written between those are positions those aren't findings there's no finding here there's an assessment of liquidated damages there's no pre determination and again nobody the city it's not the city's positions never been the city's position that they can't get relief all the relief that they believe they're entitled to through the administrative process through judicial review they have the absolute right to file a claim and say these are the taking of liquidated damages is inappropriate beyond your jurisdiction etc they have the absolute right to do that even the constitutional claim volvo the same type of claim was met in the volatile court said this court said  if we can resolve this constitutional issue through the administrative process then let's do it i mean even that can be resolved through the administrative process so if they're going to say there's a due process issue through the taking of liquidated damages would justify their attempted end run third no there's nothing extraordinary about this case there's nothing extraordinary about this case it's a dispute over contractual language statutory language between two parties it's a  thank your own i'll be brief liquidated damages or damages the city has taken money that balfour's earned indisputable saying that we breach the contract and the city  that way is that when you are in breach the contract or shall pay liquidated damages in the end if you if there is a claim or dispute about that the very next paragraph on j a ninety nine talks about how you go through the administrative process and your client is a large government contractor that is son i'm sure several contracts just like this before so how do you get beyond the clear language of the contract and black letter contract will your honor respectfully the contract provides that all disputes delinquent in the assessment of liquidated damages is the city's contention that we breach the contract it is their claim against us and the city charter and the contract say we have a right to be heard incorporated in the contract no the city charter is established by the general assembly and as the baltimore contractors case pointed out it is the law in maryland and if the contract is does not equate to what the charter provides that contract is conformed to meet the charter it's not the other way around so the charter is in place to protect not just the city but to protect my client as well and all of this could have easily been soft readily solved give us the hearing there was no obligation there's no contractual obligation that they take the money immediately that they they brand us with the position of being an irresponsible contractor that we have to disclose to others without giving us the right to be heard and they took that away from us  what we are saying is that the violation of our due process rights and liberty interests support the notion that we have been irreparably harmed there is no money damages to put to make us whole here's a new there's a case it came out of  maryland court of appeals recently in august of two thousand and sixteen it is not directly on point but it does address exhaustion of administrative remedies it united insurance for fifty maryland one it does not address palpably without jurisdiction but it lists five other exceptions to exhaustions administrative remedies one of them is that the agency cannot provide to any substantial degree a remedy when they predetermine the