REPORTED 

IN THE COURT OF SPECIAL APPEALS 

OF MARYLAND 

 

No. 600 

September Term, 2016 

______________________________________ 

MANEKIN CONSTRUCTION, INC. 

v. 

MARYLAND DEPARTMENT OF GENERAL 

SERVICES 

______________________________________ 

 

 Woodward, C.J. 

 Berger, 

 Kenney, James A., III 

 (Senior Judge, Specially Assigned), 

JJ. 

______________________________________ 

Opinion by Berger, J. 

______________________________________ 

 Filed: June 28, 2017 
This appeal arises from the circuit court’s order affirming the decision of the

Maryland Board of Contract Appeals (the “Board”) to grant summary decision in favor of 

the Department of General Services of Maryland (“DGS”), appellee. On June 9, 2010, 

appellant Manekin Construction, LLC (“Manekin”) was awarded a contract with DGS to 

construct a two-story barrack and a one-story garage for the Maryland State Police in 

Hagerstown, Maryland. The contract price totaled more than eight million dollars and was 

subject to mutually agreed upon Proposed Change Orders (“PCOs”). As we discuss in 

detail below, Manekin submitted PCO No. 68 to DGS requesting additional compensation 

during the construction of the project. After the project was complete, Manekin submitted 

a “Request for Equitable Settlement” on March 18, 2013. After DGS’s procurement officer 

denied Manekin’s claim for compensation, Manekin appealed to the Board. On September 

17, 2016, during a hearing on the merits of the claim, the Board stopped the proceedings 

and granted DGS’s Third Motion for Summary Decision. The Circuit Court for Howard 

County affirmed the Board’s decision. This appeal followed. 

The primary issue we must decide on appeal is whether the Board erred when it 

stopped the evidentiary hearing and granted summary decision in favor of DGS. More 

specifically, we must decide whether the Board improperly made findings of fact on 

disputed issues, including whether Manekin knew or should have known that DGS disputed 

or rejected Manekin’s request for compensation detailed in PCO No. 68. For the reasons 

explained below, we hold that the Board erred in its decision to grant summary decision in 

favor of DGS. 
BACKGROUND AND PROCEDURAL HISTORY 

Construction of the barrack and garage took place from June 21, 2010 until the 

project was substantially complete on or around July 26, 2012. Approximately every two 

weeks throughout the construction process, Manekin and DGS officials held meetings 

(“Progress Meetings”) to discuss Manekin’s progress and other issues. During 

performance of the construction, Manekin encountered certain difficulties that it attributed 

to delays caused by DGS (among other reasons) and submitted numerous PCOs, thereby 

requesting additional compensation. On November 2, 2011, Manekin notified DGS of the 

“cumulative impact and ripple effect of” certain factors. On December 7, 2011, Manekin 

submitted PCO No. 68, requesting compensation for the “additional time, and associated 

general conditions costs resulting from changes” discussed in the November 2, 2011 letter. 

A letter attached to PCO No. 68 detailed the changes requested, including the five “impact 

factors” that affected the cost of the project. Manekin and DGS discussed PCO No. 68 at 

three Progress Meetings, during which the issue was designated as “void” in the minutes 

for Progress Meetings and in the “PCO Log.” 

After the completion of the project, on or around March 18, 2013, Manekin sent a 

“Request for Equitable Settlement” to DGS requesting compensation for additional time

caused by the same five impact factors as outlined in PCO No. 68. DGS denied the request 

in a letter dated April 3, 2013. DGS indicated in its letter, “if you wish to further pursue 

this matter, you may do so in accordance with COMAR [Code of Maryland Regulations]

21.10.04 and the Contract Documents, General Conditions, Section 6.13, ‘Disputes and 

Contract Claims.’” On April 10, 2013, Manekin submitted its notice of claim, and on 

2 
April 29, 2013, submitted its formal claim to the procurement officer. The procurement 

officer denied Manekin’s claim on November 12, 2013, finding that the notice of claim 

was not submitted within thirty days of when Manekin knew or should have known of the 

basis of a claim. Manekin timely appealed to the Board. 

On September 17, 2016, the Board stopped the proceedings and granted DGS’s 

pending Third Motion for Summary Decision, finding that Manekin knew of the basis of 

its claim by no later than March 1, 2012, which was more than thirty days before Manekin 

submitted its notice of claim. On September 21, 2015, the Board issued a written order. 

Manekin filed a petition for judicial review in the Circuit Court for Howard County. After 

a hearing on April 21, 2016, the circuit court affirmed the Board’s grant of summary 

decision in a written opinion issued on April 27, 2016. 

DGS Contract & Relevant COMAR Provisions

 The “Department of General Services General Conditions for Construction 

Contracts (Revised March 2007)” contains the conditions of the contract between DGS and 

Manekin. As required, the contract incorporates the language of COMAR 21.07.02.05-1.1

 

Under a section of the contract entitled “6.13 Disputes and Contract Claims (COMAR 

21.07.02.05-1),” the contract provides that it is “subject to the provisions of State Finance 

1

 Similarly, COMAR 21.10.04.02 provides the following: 

Unless a lesser period is prescribed by law or by contract, a 

contractor shall file a written notice of a claim relating to a 

contract with the appropriate procurement officer within 30 

days after the basis for the claim is known or should have been 

known, whichever is earlier.

3 

 
and Procurement Article, Title 15, Subtitle 2, Annotated Code of Maryland, and COMAR 

21.10.” The following are other pertinent provisions incorporated in the contract from 

COMAR 21.07.02.05-1: 

B. Except as otherwise provided in this contract or by law, 

all disputes arising under or as a result of a breach of this 

contract that are not disposed of by mutual agreement shall be 

resolved in accordance with this clause. 

C. As used herein, claim means a written demand or 

assertion by one of the parties seeking, as a legal right, the 

payment of money, adjustment or interpretation of contract 

terms, or other relief, arising under or relating to this contract. 

A voucher, invoice, or request for payment that is not in dispute 

when submitted is not a claim under this clause. However, if 

the submission subsequently is not acted upon in a reasonable 

time, or is disputed as to liability or amount, it may be 

converted to a claim for the purpose of this clause. 

D. Within 30 days after Contractor knows or should have 

known of the basis for a claim relating to this contract, 

Contractor shall file a written notice of claim with the 

procurement officer. 

* * * 

F. The claim shall set forth all the facts surrounding the 

controversy. Contractor, at the discretion of the procurement 

officer, may be afforded an opportunity to be heard and to 

offer evidence in support of the claim. 

PCO No. 68

 On December 7, 2011, Manekin submitted PCO No. 68 providing two methods for 

calculating the amount of compensation it asserted to be due for the five impact factors 

discussed in PCO No. 68 -- a “Change Order Analysis” and a “Measured Mile Approach.” 

Manekin notes in the PCO that, although these two methods produced two different time 

4 
calculations, they were intended to provide a basis for further negotiations. Manekin relied 

on its “General Requirements Costs” of $1,315.00 per day, as provided in the original 

contract with DGS, and requested 96 days of “Contract Time Extension” plus other 

expenses, for a total of $128,134.00. Within the PCO, however, Manekin “reserve[d] the 

right to request compensation for all direct and indirect costs attributable to this delay 

impact.” At the end of PCO No. 68, Manekin added, “We believe our calculations to be 

reasonable and an appropriate representation of the impacts to Manekin on this project. 

However, we are willing to meet and negotiate an acceptable compromise without this 

matter escalating to another level.” Thereafter, the parties’ representatives discussed PCO 

No. 68 at multiple Progress Meetings. 

PCO Log

The PCO Log is a record of all PCOs as well as each PCO’s status. The status of 

each PCO is indicated in the “Remarks/Days” column. Some of these status designations 

include “VOID,” “REJECTED,” “CREDIT,” and various phrases such as “No charge 

VOID,” “Located in PCO #13 VOID,” or “G.C. agrees to amt.” Additionally, in the date 

column, either the date of the action is indicated or, if the PCO’s status is “VOID,” only 

the word “VOID” is listed in place of the date. A column labeled “PCO AMT.” lists the 

amount requested for each PCO, and a column labeled “DGS EST.” lists the amount to be 

added to the total amount due to Manekin. For any item designated as “VOID,” the “DGS 

EST.” is either blank or has a value of “$0.00.” At the end of the PCO Log, the total “DGS 

EST.” indicated is $1,232,918.00. 

5 
 For PCO No. 68, which is described as “Time Extension Request to justify new 

schedule,” the table indicates a “PCO AMT.” of $128,134.00, and the term “VOID” is 

included under the “REMARKS/DAYS” column and in the date column. For comparison 

purposes, PCO No. 22 (“Soil Fill Material Phase #1), which had a “PCO AMT.” of 

$117,642.00, is recorded as “REJECTED” in the “REMARKS/DAYS” column. PCO No. 

70 (“Revise Membrane @ Phse Chimney Caps”), on the other hand, is listed as “No charge 

VOID” and no amount was added to the total. 

Progress Meetings

The record before the Board contained the minutes for each relevant Progress 

Meeting, including Progress Meetings 37, 38, and 39. The minutes for each Progress 

Meeting include the names of persons attending, who would receive a copy of the minutes,

a synopsis of the progress of the project as of that date, and notes of the topics discussed at

the meeting. The minutes from Progress Meeting 37, held on January 5, 2012, include a 

section entitled “Time Extension PCO Discussion” containing eighteen points of 

discussion. The relevant portion of the minutes from Progress Meeting 37 includes the 

following: 

14. J. Rohrbach tentatively said that with correct back-up: 

a. PCO 63 -- 6 days 

b. PCO 68 -- VOID 

c. PCO 73 -- 10 days 

15. Dan Sharpe offered March 1, 2012 and leave open on 

compensational [sic].2

 

2

 As we discuss infra, whether the notation indicated that Manekin had committed 

to providing the fragnets by March 1, 2012 was not established at the evidentiary hearing 

as an undisputed fact. 

6 

 
* * * 

18. Tentative Schedule: 

 -- February 15, 2012 -- Develop ‘work list’ 

 -- March 1, 2012 -- Substantial Completion Punch List 

 and begin Barrack move

 -- Within 60 days (May 1, 2012) the following items will 

 be placed on punch list and complete: 

 - Abatement 

 - Demo

 - Landscape 

 - Paving 

 - Fuel System 

The revised minutes for Progress Meeting 38, which was held on January 19, 2012, 

reference the need for “fragnets” for PCO No. 68. A fragnet is a detailed analysis of how 

particular factors impacted the construction project, such as when and how the contractor 

lost scheduled time. The minutes indicate that the parties continued to discuss PCO No. 

68., referenced by the following notation: 

VOIDED AA. PCO 068 -- Rock extension is not approved 

 to April 14, 2012. 

Day after Jan. 27, 2012 Liquidated Damages 

will be accessed [sic]. 

Fragnets must be submitted and part of the 

time extension. 

01-05-12 VOIDED. 

Finally, the minutes from Progress Meeting 39, held on February 2, 2012, included 

the same notations under points 14, 15, and 18 as the minutes from Progress Meeting 37, 

with the addition of the following notes added to point 18: 

01-19-12 52 days currently being allowed for extension. 

02-02-12 Substantial Complete is now May 1st (Added 

131 days) 

7 
Hearing Before the Board and the Board’s Decision

In a letter dated August 7, 2015 from Board Member Dana Dembrow, the Board 

notified the parties of the trial date for Manekin’s appeal of the procurement officer’s denial 

of its claim. The brief letter included the following: 

As you know, there are three (3) Motions pending for Partial 

Summary Decision in this matter, which is currently scheduled 

for trial on September 14, 2015. 

Counsel understand that the pending Motions must be based on 

factual matters as to which there is no genuine dispute, and that 

all factual inferences must be resolved in favor of the adverse 

party at this point in the proceeding. 

At the present time, the Board does not anticipate making any 

decision on the pending Motions until after evidence is 

presented at trial. Of course, counsel are also free to renew 

Motions during the course of trial as evidence is adduced. 

We hope this correspondence is useful to your trial preparation. 

Hearings before the Board were held on September 14, 16, and 17, 2016. The only 

witness to testify before the Board ended the proceedings by granting DGS’s motion for 

summary decision was Daniel Sharpe, Vice President and Project Manager for Manekin. 

Sharpe testified regarding when he became aware that DGS had denied the request 

contained in PCO No. 68. The following colloquy between the Presiding Member of the 

Board and counsel for DGS ensued: 

PRESIDING MEMBER DEMBROW: . . . Now, frankly, . . . 

there’s nothing in this affidavit that says what Mr. Rohrbach 

intended by the word void or voided. And that’s the crux of 

the issue. [ . . . ] We’re still trying to figure out what was meant 

by void. So hopefully we’ll get to that point. [ . . . ] [Y]ou’ve 

made a very effective point that the State told the Appellant 

this PCO 68 was void. Okay. 

8 
[COUNSEL FOR DGS]: Mr. Dembrow, . . . I gave you a 

Daniel Webster’s Dictionary definition of the word void. [ 

. . . ] You’re not going to get anything more from the State. We 

just -- we use English words . . . . And [counsel for Manekin] 

will agree with me, the word void isn’t defined anywhere in the 

contract. 

PRESIDING MEMBER DEMBROW: . . . I’ve been waiting 

to hear from Mr. Rohrbach. In this affidavit he . . . reiterates 

that he uses the word void. It seems odd that he doesn’t say 

PCO 68 was rejected. What it says is it was void. And it further 

says that it was void with the opportunity to submit or the 

request and requirements to submit fragnets. And Mr. Sharpe, 

if we can [direct] your attention to the progress meeting on 

January 5, 2012 . . . that’s where the progress meeting reports 

say, quote, Dan Sharpe offered March 1, 2012 and leave 

discussion open on compensational. Whatever that means . . . . 

Counsel for DGS returned to questioning Sharpe and asked whether his belief “in 

his mind” that the issue in PCO No. 68 was left open had been documented. After Sharpe 

pointed to the Progress Meeting minutes notation “leave open on compensational [sic],” 

Presiding Member Dembrow added the following: 

PRESIDING MEMBER DEMBROW: I think he has . . . I 

think that the progress meeting notes are consistent with what 

he said. He’s saying that he asked for the compensation to be 

left open, and the minutes of the progress meeting say leave 

discussion open. 

Thereafter, Presiding Member Dembrow interrupted cross-examination to ask a 

question directed at counsel for DGS: 

PRESIDING MEMBER DEMBROW: . . . Mr. Rohrbach is 

not going to testify, is that correct? 

[COUNSEL FOR DGS]: I haven’t made that decision yet, sir. 

9 
PRESIDING MEMBER DEMBROW: I’m curious to know 

why it says in the affidavit that he never told anyone that they 

could wait until a later date, but all the notes reflect that they’re 

asking for fragnets. They’re requiring fragnets. They want 

proof that it’s on the critical path. Obviously there was an 

anticipation that [Manekin was] going to submit something or 

[DGS] wouldn’t have required and requested it. And . . . that’s 

sort of a mystery at this point. [ . . . ] [H]e voided and asked 

for fragnets. That’s the dilemma. That’s the dichotomy. 

[COUNSEL FOR DGS]: No, no, no, that’s not what his . . . if 

you . . . Mr. Dembrow, it says that he repeatedly had questions 

-- conversations with Chris Mento where Dan Sharpe was not 

present and he repeatedly said this is what I need, and they 

never came forward. [ . . . ] 

PRESIDING MEMBER DEMBROW: That makes your claim 

clearer. I’m sure [counsel for Manekin] has a different point 

of view. We’re going to hear evidence about that. [ . . . ] 

I interjected. I’m putting the State on fair notice where we 

need, where at least I need clarification. And that goes to the 

question of what they meant when they said voided give us 

fragnets. We’re trying to get to that, and the parties have 

opposite points of view. So let’s just try to go through the . . . 

evidence as we should with the next, with another question of 

Mr. Sharpe. 

* * * 

[Redirect by counsel for Manekin] 

Q. . . . Your request for payment . . . for ripple effects, was 

that in dispute at the time you submitted it? 

A. No. 

Q. Was PCO 68 in dispute at the time you submitted it? 

A. No. 

10 
 Chairman Collins interjected during redirect with additional questions directed at

Sharpe, which were focused primarily on why Sharpe had not filed a claim after PCO No. 

68 was marked “VOID.” 

A. . . . I didn’t feel that I had any claim or anything at the 

time when I was going through these things initially ‘cause we 

were trying to work through them. 

* * * 

CHAIRMAN COLLINS: . . . Because you thought in your 

mind we can do it all at the end. When in reality the general 

conditions said you had to do it within 30 days of when you 

should have known. [ . . . ] That’s the trouble I’m having as a 

Board Member here -- 

A. But Mr. Collins, what I would like to answer back -- 

CHAIRMAN COLLINS: Yeah, [p]lease do. 

A. -- is I really . . . didn’t know . . . I had a dispute going 

on. I was asked to try to produce a fragnet which I worked 

vigorously to try to do, and I was -- because I never could really 

produce that fragnet that stated all these different things, that’s 

the reason why I felt that . . . I wasn’t like in a . . . claim mode 

or this major dispute mode ‘cause I was still trying to figure a 

way to produce the evidence or the backup that the State was 

asking for. [ . . .] 

CHAIRMAN COLLINS: Yeah, but even though you knew, 

you knew that it was gone. 

A. Well, it wasn’t . . . really gone. 

CHAIRMAN COLLINS: Well, yeah, it was really gone. Mr. 

Mento acknowledged it was really gone, and so did Mr. 

Rohrbach in this deposition say it was really gone. What he 

did say, so we are going to void this, and you can come back 

later. This is null and void. This is gone. But you know if you 

can produce that fragnet down the road show me another PCO. 

11 
Well when someone says that to me . . . you got to say to 

yourself at that point, there’s a potential claim. 

[By counsel for Manekin] 

Q. . . . [The] question to you is was there a dispute that had 

arisen during this process that you could file a notice of claim? 

A. Not at the time . . . 

Q. Why not? 

A. Because we didn’t receive any official thing. Except I 

understand the conversations that were had, but we were still 

having basically ongoing meetings, ongoing discussions about 

a lot of different things on the project, and I didn’t get, until I 

got that letter slammed back at me[,] that was when I realized 

I didn’t really have a -- 

Q. Which letter? 

A. . . . It was a letter that came back from the State which was 

from DGS that basically denied . . . everything. . . . 

Q. . . . Mr. Collins’ point was that you knew that there was at 

least that PCO 68 was void. [ . . .] 

A. Well it didn’t mean to me it was off the table. It meant to 

me that I still had to come back, . . . and once I produced the 

additional backup that I could bring that thing back up. 

Near the conclusion of Sharpe’s testimony, the Board stopped the proceedings and 

granted DGS’s Third Motion for Summary Decision. Presiding Member Dembrow 

provided the following rationale for the Board’s Decision: 

Okay. At this time there will not be a need for recrossexamination because the Board has unanimously determined to 

grant the State’s Motion for Partial Summary Judgment 

Number 3. After listening carefully to the testimony of Mr. 

Sharpe, who is the Vice President of the Appellant 

Construction Company, Manekin, and the Project Manager on 

12 
this job, it is clear that even giving the Appellant the benefit of 

all doubt the ripple effect claim was first raised to the State by 

correspondence November 2, 2011. It was formally submitted 

as a proposed change order on December 7, 2011. And the 

very next day the State indicated to Appellant that that PCO 

was, quote, void, end quote. Now that was clear in the mind of 

some of the Members of the Board that that meant reject. But 

giving Appellant the benefit of all doubt, because there is a bit 

of a nuance in that DGS also noted on that voiding of that PCO 

that they wanted fragnets. The Board notes that the last 

request, and there are a couple of them at least, that the State 

made of the Appellant to submit the fragnets needed to support 

PCO 68, the last reference to fragnet was made on January 19, 

2012. 

There was a progress meeting on February 2, 2012, and in the 

minutes of that progress meeting, the minutes being dated 

February 7, 2012, there is reference that Mr. Sharp[e] stated or 

at least the minutes state, quote, Dan Sharpe offered March 1, 

2012 and leave discussion open on compensational, period. 

That’s certainly not an example of the greatest grammar 

because it’s somewhat difficult to know what that even means. 

But it does appear beyond a shadow of a doubt that on February 

2, 2012, when PCO 68 was marked void there was no reference 

to fragnets at that point. There had not been a reference for the 

need for further documentation by way of fragnets since 

January 19, 2012. At least as of February [2nd] Mr. Sharpe 

was saying we’ll do this by March 1, 2012. 

[COMAR 21.10.04.02] says . . . a contractor shall file a written 

notice of a claim relating to a contract with the appropriate 

procurement officer within 30 days after the basis for the claim 

is known or should have been known. It appears that the basis 

of the claim was initially known back in November of 2011. It 

certainly was known as of February 2012. But this claim was 

not filed until a year later. So even if we give the . . . Appellant 

the benefit of all doubt and give them [until] March 1, 2012, as 

the trigger date for the beginning of that 30-day statute of 

limitations, we’re still a year late. And the Board is directed 

by [COMAR 21.10.04.02C], quote, a notice of a claim or a 

claim that is not filed within the time prescribed shall be 

dismissed. Emphasis on the word shall. 

13 
Fair or unfair, that [is] what the regulation requires. [. . .] The 

Board has no choice but to not address the substantive merits 

of a claim that is filed a year late. And the Board concludes 

that that is the correct categorization of this appeal. Therefore, 

it will be dismissed at this time without the necessity of further 

testimony. 

Presiding Member Dembrow confirmed that the other Board Members concurred in the 

decision before adding the following: 

We wanted to hear testimony from Mr. Sharpe and give the 

Appellant the benefit of all doubt. We are comfortable that 

we’ve done that now. So this was not a decision made in haste, 

but one that we’ve been thinking about for a long time. And 

the testimony . . . confirmed the view of some of the Board 

Members a long time ago. 

The Circuit Court’s Affirmance of the Board’s Decision

On April 27, 2016, the Circuit Court for Howard County affirmed the Board’s 

decision to grant summary decision. The written opinion of the circuit court provides, in 

pertinent part: 

The parties’ first dispute is over the standard of review to be 

applied by the Circuit Court in reviewing the decision of an 

administrative agency. . . . Specifically, Manekin argues that 

the VOID notation indicated it was to provide more 

documentation or information, and that it’s right to appeal did 

not attach until its more formal claim letter was denied 14 

months later. [ . . . ] 

DGS reminds the Court that because of the MSBCA members’ 

familiarity with the subject matter, state procurement law, and 

expertise in that area, the appellate decisions and statutes allow 

the Court a very limited scope of review. [ . . . ] 

When the Court is reviewing a final decision of an 

administrative agency, the Court determines the legality of the 

decision and whether there was “substantial evidence” from 

the record as a whole to support the decision. [ . . . ] 

14 
Case law is clear that the Circuit Court[] is not to make findings 

of fact. That function is entirely within the realm of the agency, 

as is determining the inferences to be drawn from those facts. 

[ . . . ] Even though the final decision was reached by way of 

a ruling on a motion for summary decision, and not as the result 

of a contested hearing, the analysis is the same. . . . The Court 

must determine if the findings of fact are supported in the 

record by substantial evidence, and if so, whether the decision 

of the agency was legally correct. 

(Citations omitted). 

After articulating this standard of review,

3 the circuit court analyzed the Board’s 

decision and characterized the Board’s findings regarding notice as a “finding of fact.” 

The [Board] made a finding of fact that Manekin was on notice 

of DGS’s denial of its requests under PCO 68 by the end of 

February 2012 when Presiding Member Dana Dembrow 

stated, “It appears that the basis of the claim was initially 

known back in November of 2011. It certainly was known as 

of February 2012. But this claim was not filed until a year 

later. So even if we give the [] Appellant the benefit of all 

doubt and give them [until] March 1, 2012, as the trigger date 

for the beginning of that 30-day statute of limitations, we’re 

still a year late.” [ . . . ] This finding of fact was supported in 

the record by the Progress Meeting Notes for January 5, 2012, 

January 19, 2012, and February 2, 2012 which were received 

as evidence at the [Board] hearing. Reasoning minds 

examining this evidence could reasonably reach the conclusion 

that Manekin was on notice (knew or should have known) that 

DGS denied its claim for costs under PCO 68 by the end of 

February 2012. Inferences were resolved in Manekin’s favor 

when the Presiding Member gave Manekin until March 1, 

2012. 

Thereafter, the circuit court affirmed the Board’s determination finding that DGS 

was entitled to summary decision as a matter of law. 

3

 We note, preliminarily, that the circuit court relied upon an incorrect standard of 

review, as we discuss in further detail below. 

15 

 
DISCUSSION 

I. Judicial Review of an Agency’s Conclusions of Law 

The Court of Appeals has explained that we “look[] through the circuit court’s . . . 

decision[], although applying the same standards of review, and evaluate[] the decision of 

the agency.” People’s Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 681 (2007). In 

other words, we “review[] the agency’s decision, not the circuit court’s decision.” Long 

Green Valley Ass’n v. Prigel Family Creamery, 206 Md. App. 264, 273 (2012) (citation 

omitted). We review questions of law de novo. See Assateague Coastkeeper v. Md. Dep’t 

of the Env’t, 200 Md. App. 665, 690 (2011). 

We note that “[a]n administrative agency’s interpretation of a statute that the agency 

administers should ordinarily be given considerable weight by reviewing courts,” Piney 

Orchard Cmty. Ass’n, 231 Md. App. at 92 (citation omitted); however, we owe no 

deference to an agency’s erroneous conclusions of law. See Bd. of Cnty. Comm’rs for St. 

Mary’s Cnty. v. S. Res. Mgmt., Inc., 154 Md. App. 10, 34 (2003) (citations omitted)

(“[W]here an administrative agency renders a decision based on an error of law, we owe 

the agency’s decision no deference.”). “In contrast to administrative findings of fact, 

questions of law, including the proper construction of a statute, are subject to more plenary 

review by the courts.” Md. Office of People’s Counsel v. Md. Pub. Serv. Comm’n, 226 

Md. App. 483, 501 (2016) (quoting Office of People’s Counsel v. Md. Pub. Serv. Comm’n, 

355 Md. 1, 14 (1999)). 

Although we “review[] the agency’s decision, not the circuit court’s decision,” 

Long Green Valley, supra, 206 Md. App. at 273, we note that the circuit court’s recitation 

16 
of the “substantial evidence” standard of review as the appropriate review of an

administrative agency’s summary decision was incorrect. The circuit court noted that the 

Board’s “finding of fact that Manekin was on notice of DGS’s denial of its requests under 

PCO 68 by the end of February 2012 . . . . March 1, 2012 at the latest” was supported by 

“substantial evidence.” Further, the circuit court found the Board’s finding of March 1, 

2012 as an “inference[] . . . resolved in Manekin’s favor.” The circuit court, therefore, 

erred in determining whether there was substantial evidence in the record to support the 

Board’s findings of fact. That error compounded the Board’s error in making findings of 

fact on disputed issues prior to the conclusion of Manekin’s presentation of evidence on 

the issue. Although DGS attempts to provide us with support for the circuit court’s review 

and argues that “this Court should apply a more deferential ‘substantial evidence’ standard 

of review,” we reject this assertion. The correct standard of review, at both the circuit court 

level as well as for this Court, is whether the Board’s decision to grant summary decision 

in favor of DGS was correct as a matter of law. See Eng’g Mgmt. Servs. v. State Highway 

Admin., 375 Md. 211, 228-29 (2003) (citations omitted) (“The standard for appellate 

review of a summary judgment is whether it is “legally correct. [ . . . ] This is the same 

standard of review we apply to the question of the legal correctness of an administrative 

agency’s decision.”). Because the Board made its decision on a motion for summary 

decision, we examine whether the Board’s decision was correct as a matter of law. 

17 
II. Summary Decision Standard & State Procurement Contract Framework 

Critically, only when there is no genuine dispute of material fact may the Board 

determine whether a party is entitled to summary decision as a matter of law. COMAR 

21.10.05.06D provides the following: 

(1) A party may move for summary decision on any 

appropriate issue in the case.

(2) The Appeals Board may grant a proposed or final summary 

decision if the Appeals Board finds that: 

(a) After resolving all inferences in favor of the party 

against whom the motion is asserted, there is no genuine 

issue of material fact; and 

(b) A party is entitled to prevail as a matter of law. [4]

The Board’s two-step process in deciding a motion for summary decision begins with the 

determination of whether there is any “genuine issue of material fact.” COMAR 

21.10.05.06D(2)(a). If the moving party is unable to demonstrate that no material fact is 

in dispute, the analysis ends and summary decision is not appropriate. Only “[a]fter 

resolving all inferences in favor of the party against whom the motion is asserted” and 

finding that “there is no genuine issue of material fact” should the Board determine whether 

the moving “party is entitled to prevail as a matter of law.” COMAR 21.10.05.06D(2).5

 

4

 This standard for summary decision in administrative decisions provided by 

COMAR 21.10.05.06D is similar to the standard for summary judgment, as provided by 

Maryland Rule 2-501(a): “Any party may file a written motion for summary judgment on 

all or part of an action on the ground that there is no genuine dispute as to any material fact 

and that the party is entitled to judgment as a matter of law.” 

 5

 The Board itself acknowledged these criteria in its letter of August 7, 2015, 

reminding the parties that “the pending Motions must be based on factual matters as to 

18 

 
Put differently, the Board is not authorized to make findings of fact on material issues that 

remain in dispute. To the extent the court considers a disputed fact, the court must view 

that fact in favor of the nonmoving party and determine whether the moving party is 

entitled to summary decision. 

III. The Board Erred In Granting DGS’s Third Motion for Summary Decision. 

We have explained that contract claims arising out of state procurement contracts 

are subject to statutorily-prescribed administrative procedures. See McLean Contracting 

Co. v. Md. Transp. Auth., 70 Md. App. 514, 523-24 (1987). The mandatory claims process 

is set forth in Maryland Code (2009, 2015 Repl. Vol.), State Finance & Procurement 

Article (SFP), Title 15 and COMAR 21.10. COMAR 21.07.02.05-1D provides, “[w]ithin 

30 days after contractor knows or should have known of the basis for a claim relating to 

this contract, contractor shall file a written notice of claim with the procurement officer.” 

Further, “[a] notice of claim or a claim that is not filed within the time prescribed in 

Regulation .02 of this chapter shall be dismissed.” COMAR 21.10.04.02C. 

A. Knowledge Of A Basis For Submitting A “Request for Payment” That 

Is Not In Dispute When Submitted Does Not Establish Knowledge Of “A 

Basis For A Claim.” 

To determine whether Manekin failed to comply with the timing requirements, the 

Board was required to consider whether Manekin “[knew] or should have known of the 

basis for a claim” more than thirty days before it submitted its notice of claim to the 

which there is no genuine dispute, and that all factual inferences must be resolved in favor 

of the adverse party at this point in the proceeding.” Thereafter, the letter provides that the 

parties should prepare for trial accordingly. 

19 

 
procurement officer on April 10, 2013. See COMAR 21.07.02.05-1D. To apply this 

provision correctly, therefore, the Board was required to make a finding of fact, accurately 

identifying “a basis for a claim” pursuant to COMAR 21.07.02.05-1. A “claim” is defined 

in the following provision: 

As used herein, claim means a written demand or assertion by 

one of the parties seeking, as a legal right, the payment of 

money, adjustment or interpretation of contract terms, or other 

relief, arising under or relating to this contract. A voucher, 

invoice, or request for payment that is not in dispute when 

submitted is not a claim under this clause. However, if the 

submission subsequently is not acted upon in a reasonable 

time, or is disputed as to liability or amount, it may be 

converted to a claim for the purpose of 

this clause. 

COMAR 21.07.02.05-1C (emphasis added). 

Pursuant to COMAR 21.07.02.05-1C, a contractor’s knowledge of the basis for 

“request[ing] payment that is not in dispute when submitted” is not the same as having 

knowledge of the basis of a “claim.” Manekin’s submission of a PCO, therefore, is not 

dispositive evidence of having knowledge of the basis for a claim. Once a request for 

payment is disputed, however, a claim arises. The thirty-day limitations period under 

COMAR 21.07.02.05-1D would begin, therefore, once the contractor knows or should 

have known of a dispute or denial of its request. 

As we have explained supra, although we attribute some weight to an agency’s 

expertise and its interpretation of a statute that it administers, we review questions of law 

de novo. See Assateague Coastkeeper, supra, 200 Md. App. at 690. Here, however, the

Board in its decision provided no interpretation of COMAR 21.07.02.05-1. Indeed, in 

20 
explaining the Board’s decision, Presiding Member Dembrow stated, “[i]t appears that the 

basis of the claim was initially known back in November of 2011,” referring to the date 

that Manekin first raised the issues contained in PCO No. 68 in a letter to DGS prior to 

submitting PCO No. 68. It is not clear, therefore, whether the Board equated having 

knowledge of a basis for submitting a request for payment that was not in dispute when 

submitted with a “basis for a claim.” 

 Although the Board’s prior interpretations of a statute do not create mandatory 

authority for this Court, we note that the Board’s application of the timing provisions in 

COMAR 21.07.02.05-1 in this case is inconsistent with the Board’s own interpretations in 

some of its prior decisions. For example, in Info. Sys. & Networks Corp., MSBCA No. 

2225 (March 4, 2004), the Board found that the thirty-day limitations period began upon 

the appellant’s receipt of the procurement officer’s letter denying the appellant’s change 

order request (i.e. a “PCO”). On January 22, 1999, after the parties had contemplated an 

increase to the contract ceiling during weekly progress meetings, the appellant submitted a 

formal request for a change order. Thereafter, the appellant sent the agency two follow-up 

requests for a decision on its January 22, 1999 request and did not receive a response until 

the procurement officer’s July 23, 1999 denial letter. The Board concluded that the thirtyday limitations period did not begin until the appellant received the procurement officer’s 

denial letter. Id. at 13. In its written decision, the Board reached the following conclusions: 

Until [the procurement officer’s] letter of July 23, 1999 

rejecting Appellant’s change order request, Appellant had no 

reason to believe that its change order was in dispute. 

Appellant timely filed a notice of claim and claim regarding 

the Procurement Officer’s . . . July 23, 1999 rejection of its 

21 
change order request, which was confrontational and put 

Appellant on notice that it must file a claim. 

Id. 

 Similarly, in David A. Bramble, Inc., MSBCA No. 2823 (July 5, 2013), the Board 

found that the contractor’s notice of claim was not timely because the contractor admitted 

that he had actual notice of the agency’s rejection of his proposal more than thirty days 

before filing a notice of claim. In Syscom, Inc., MSBCA No. 2268 (July 5, 2002), the 

Board found that a dispute triggering the limitations period did not arise prior to the 

procurement officer’s decision that the agency’s additional reporting directives to the 

contractor were within the scope of the underlying contract. Id. at 8. Notably, in that case, 

the contractor had previously sent a letter to the agency, refusing to carry out the directives

without an approved change order. Id. at 2. 

In these decisions, the Board’s findings are consistent with our interpretation in this 

case of COMAR 21.07.02.05-1C and D -- that the thirty-day limitations period begins 

when the contractor has notice that the agency disputes the contractor’s request. In 

determining whether Manekin complied with the timing requirements, the Board was 

charged with deciding whether Manekin had notice from DGS that DGS disputed or denied 

its request contained in PCO No. 68 more than thirty days before Manekin filed its notice 

of claim. 

22 
B. The Board Made Findings of Fact on Disputed Issues by Determining 

the Meaning of “Void” and that Manekin was to Provide Additional 

Information by March 1, 2012. 

In addition to finding that Manekin knew of the issues raised in PCO No. 68 as early 

as November 2, 2011, the Board found, alternatively, that Manekin should have known 

that DGS disputed the request contained in PCO No. 68 by February 2012. In so doing, 

the Board relied primarily on notations in the PCO Log and Progress Meeting minutes to 

make at least two improper findings of fact prior to a full hearing on the merits. Critically,

both of these factual conclusions were determinative in its decision. 

First, the Board relied, in part, upon the fact that PCO No. 68 was designated as 

“VOID” in the PCO Log to conclude that Manekin knew or should have known of the basis 

of a claim by December of 2011, and “certainly . . . as of February 2012.” Presiding 

Member Dembrow explained the Board’s reliance on the “VOID” notation in the following 

portion of the Board’s decision: 

[I]t is clear that even giving the Appellant the benefit of all 

doubt the ripple effect claim was first raised to the State by 

correspondence November 2, 2011. It was formally submitted 

as a proposed change order on December 7, 2011. And the 

very next day the State indicated to Appellant that the PCO 

was, quote, void, end quote. Now that was clear in the mind of 

some of the Members of the Board that that meant reject. [ . . . ] 

* * * 

It appears that the basis of the claim was initially known back 

in November of 2011. It certainly was known as of February 

2012. But this claim was not filed until a year later. 

At various points during the evidentiary hearing, however, Presiding Member 

Dembrow emphasized the need for additional clarification. Presiding Member Dembrow 

23 
found the term “void” particularly troubling in relation to the undisputed fact that the 

minutes from Progress Meetings 37 and 39 reference a comment by Sharpe to “leave 

discussion open on compensational [sic],” which the Board acknowledged is difficult to 

interpret. Further, in addition to the term “void,” the PCO Log included the term “rejected” 

as the status for other PCOs. Presiding Member Dembrow pointed out that Rohrbach 

admitted during his deposition that there was a difference between the terms “void” and 

“rejected, explaining that “void” meant “you can come back later.” During the evidentiary 

hearing, Presiding Member Dembrow stated to counsel for DGS, “I’ve been waiting to hear 

from Mr. Rohrbach. In this affidavit he . . . reiterates that he uses the word void. It seems 

odd that he doesn’t say PCO 68 was rejected.” He later added, “Now, frankly, . . . there’s 

nothing in this affidavit that says what Mr. Rohrbach intended by the word void . . . .” 

Thereafter, Presiding Member Dembrow informed counsel for DGS, “I’m putting the State 

on fair notice where we need, where at least I need clarification. And that goes to the 

question of what they meant when they said voided give us fragnets. We’re trying to get 

to that, and the parties have opposite points of view.” As Presiding Member Dembrow 

stated, “[T]hat’s the crux of the issue. [ . . . ] We’re still trying to figure out what was meant 

by void.” 

 The only evidence presented at trial that was relevant to the meaning of the term 

“void,” however, was Sharpe’s testimony concerning his understanding of the term. 

Sharpe testified that he interpreted “void” to mean that the issue would be left open to raise 

again at a later date, and in this case, not until Manekin had compiled and submitted the 

information requested. Further, Sharpe testified that he was not aware that DGS disputed 

24 
Manekin’s request until DGS denied Manekin’s “Request for Equitable Settlement” on 

March 18, 2013. 

The blurring of the line between a hearing on the motion for summary decision and 

the evidentiary hearing, during which testimony had already begun, presents procedural 

challenges. Without hearing Rohrbach’s testimony on the merits of the claim, certain 

Board Members found his deposition testimony and affidavit convincing enough to draw 

conclusions of fact regarding the meaning of the “void” notation. For instance, Chairman 

Collins stated to Sharpe during his cross-examination, “Mr. Rohrbach in this deposition 

[said PCO No. 68] was . . . gone.” Chairman Collins paraphrased his understanding of

Rohrbach’s deposition testimony, in which Rohrbach explained his interpretation of the 

meaning of “void,” in the following way: “[W]e are going to void this, and you can come 

back later. This is null and void. This is gone. But you know if you can produce that 

fragnet down the road show me another PCO.” Based, in part, on Rohrbach’s explanation, 

Chairman Collins added that Manekin should have known there was a dispute. This factual

finding, however, was not permitted at this stage of the proceeding. The parties disputed 

the meaning of the term “void,” which was not defined in relevant statutes or the parties’ 

contract. The Board erred, on a motion for summary decision, in determining whether the 

notation of “void” indicated that Manekin knew or should have known that DGS had 

rejected PCO No. 68, and thus, that the basis of a claim had arisen more than thirty days 

before Manekin submitted its notice of claim. 

 The Board further erred in finding that Manekin had committed to providing the 

fragnets for PCO No. 68 by March 1, 2012. The Board reached this finding based on a 

25 
vague notation contained in the minutes from Progress Meeting 39 held on February 2, 

2012.6

 Presiding Member Dembrow stated as follows: 

[I]n the minutes being dated February 7, 2012,[7] there is [a] 

reference that Mr. Sharpe stated or at least the minutes state, 

quote, Dan Sharpe offered March 1, 2012 and leave discussion 

open on compensational, period. . . . [I]t’s somewhat difficult 

to know what that even means. [ . . . ] [But] [t]here had not 

been a reference for the need for further documentation by way 

of fragnets since January 19, 2012. At least as of February 2nd, 

Mr. Sharpe was saying we’ll do this by March 1, 2012. 

* * * 

So even if we give the, the Appellant the benefit of all doubt 

and give them [until] March 1, 2012[] as the trigger date for 

the beginning of that 30-day statute of limitations, we’re still 

a year late. 

 During the hearing, however, the Board raised questions regarding why DGS 

continued to ask for fragnets while designating PCO No. 68 as void. Indeed, Presiding 

Member Dembrow acknowledged during Sharpe’s testimony that, although Rohrbach 

stated in his affidavit that he did not tell Manekin that they could later return to PCO No. 68, 

the minutes reflect that DGS had continued to ask for fragnets while simultaneously 

marking it as “void.” Presiding Member Dembrow stated, “They’re requiring fragnets. 

6

 The circuit court’s review of the Board’s decision supports our finding that the 

Board made findings of fact that were material to the Board’s decision to grant summary 

decision in favor of DGS. Indeed, we agree with the circuit court that “[t]he [Board] made 

a finding of fact that Manekin was on notice of DGS’s denial of its requests under PCO 68 

by the end of February 2012,” because Manekin had not produced the requested fragnets. 

7

 The minutes for Progress Meeting 39 were finalized on February 7, 2012. 

26 

 
They want this information. [ . . . ] Obviously there was anticipation that they were going 

to submit something or they wouldn’t have . . . requested it.” 

 The Board’s conclusion that Manekin’s Vice President had offered March 1, 2012 

as the deadline by which Manekin would provide the fragnets involves a finding of fact on 

a disputed issue. The Board acknowledged during the proceedings that the notation “Dan 

Sharpe offered March 1, 2012 and leave discussion open on compensational [sic]” required 

further clarification. Manekin did not concede that the parties had discussed a particular 

deadline for Manekin’s submission of the fragnets for PCO No. 68. Instead, Sharpe 

explained during his testimony only that he had requested that the parties leave the issue 

open.8

 Additionally, other notations within the minutes for Progress Meeting 39, under 

the same points of discussion, refer to “March 1, 2012” in relation to the notation 

“Substantial Completion Punch List and begin Barrack move.” In other words, whether the 

notation indicated that Sharpe had agreed to a March 1, 2012 deadline to produce fragnets 

for PCO No. 68 was not a permissible finding at this stage of the proceedings. 

Furthermore, although March 1, 2012 is later than the other dates considered by the 

Board as potentially starting the limitations period, the finding that the thirty-day period 

began on March 1, 2012 was not sufficient to “resolv[e] all inferences in favor of the party 

against whom the motion is asserted.” COMAR 21.10.05.06.D(2)(a). Manekin argued 

that the limitations period did not begin until April 3, 2013, when DGS denied Manekin’s 

8 Additionally, when the notation was raised during the cross-examination, 

Presiding Member Dembrow agreed that Sharpe’s testimony -- that he had requested the 

parties keep the issue of PCO No. 68 open -- was consistent with his own interpretation of 

the meeting minutes. 

27 

 
“Request for Equitable Settlement.” The Board inferred that Manekin was required to 

provide fragnets by March 1, 2012, and therefore, that Manekin knew or should have 

known of a dispute on that date. This inference was not permitted since the relevant 

COMAR provision directed the Board to resolve all inferences at this stage of the 

proceeding in favor of Manekin. Based on the Board’s determination of March 1, 2012 “as 

the trigger date for the beginning of [the thirty-day] statute of limitations,” however, the 

Board concluded that Manekin had submitted its notice of claim more than a year late. The 

Board’s conclusion that Sharpe was required to provide the fragnets for PCO No. 68 by 

March 1, 2012 was, therefore, an improper finding of fact at this stage of the proceeding. 

The point at which the thirty-day limitations period began, as the Board has 

indicated in several prior decisions noted supra, is the moment Manekin knew or should 

have known that DGS rejected or denied the request contained in PCO No. 68. The point 

in time when Manekin should have known of a denial of its request involves a disputed 

material fact, which the Board was not authorized to resolve via summary decision. The 

Board’s task was, first, to determine if there existed any “issue[s] of material fact,” after 

resolving all reasonable inferences in favor of Manekin. The Board, therefore, was required 

to hear the merits of the case and apply the appropriate meaning of “a basis for a claim” 

under COMAR 21.07.02.05-1 in its final determination. 

The Board erred by terminating the proceedings after hearing from only one of 

Manekin’s witnesses. The Presiding Member of the Board stated: 

At this time there will not be a need for recross-examination 

because the Board has unanimously determined to grant the 

State’s Motion for Partial Summary [Decision] Number 3. 

28 
After listening carefully to the testimony of Mr. Sharpe, . . . it 

is clear that even giving the Appellant the benefit of all doubt 

the . . . claim was first raised to the State by correspondence 

November 2, 2011. 

Presiding Member Dembrow concluded, “We wanted to hear testimony from Mr. Sharpe 

and give [him] the benefit of all doubt. We are comfortable that we’ve done that now.” 

Presiding Member Dembrow added that “the testimony . . . confirmed the view of some of 

the Board Members a long time ago.” Sharpe made no explicit concession during his 

testimony, however, that was dispositive on the issue of when Manekin knew or should 

have known that DGS disputed Manekin’s request for additional compensation contained 

in PCO No. 68. 

 The Board’s error in this case stems, primarily, from its failure to adhere to 

procedural processes. The standards for summary decision as opposed to a merits hearing 

are fundamentally different. The Board should not consider a motion for summary decision 

during an evidentiary hearing, unless the rules expressly provide for it. The only evidence 

presented at the evidentiary hearing at the time the Board stopped the proceedings was 

testimony that served to confirm that the parties disputed a material fact. The Board, 

however, made findings of fact on those disputed issues and then granted summary 

decision. In doing so, the Board blurred the line between determining whether a disputed 

fact existed and making findings of fact based on the evidence presented at the evidentiary 

hearing. The Board’s consideration of whether to grant summary decision during the 

proceedings on the merits creates confusion and, as shown here, increases the chance for 

error by both the Board and the circuit court. 

29 
Accordingly, we hold that the Board erred in its decision to terminate the 

proceedings and grant summary decision in favor of DGS. We, therefore, remand to the 

Board to decide, after hearing all of the evidence, when DGS communicated a dispute or 

denial of PCO No. 68 to Manekin such that it knew or should have known that it was 

required to submit a notice of claim to DGS within 30 days. 

JUDGMENT OF THE CIRCUIT COURT FOR 

HOWARD COUNTY REVERSED. CASE 

REMANDED TO THE BOARD OF CONTRACT 

APPEALS FOR FURTHER PROCEEDINGS 

CONSISTENT WITH THIS OPINION. COSTS 

TO BE PAID BY APPELLEE. 

30