Modivcare Sols. v. Office of Admin.

• Docket Number: WD86090
• Decision Date: 16 January 2024
• Parties: MODIVCARE SOLUTIONS, LLC, Appellant, v. OFFICE OF ADMINISTRATION, et al., Respondents, and MEDICAL TRANSPORTATION MANAGEMENT, INC., Intervenor/Respondent.
• Court: Missouri Court of Appeals

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MODIVCARE SOLUTIONS, LLC, Appellant,
v.
OFFICE OF ADMINISTRATION, et al., Respondents,

and MEDICAL TRANSPORTATION MANAGEMENT, INC., Intervenor/Respondent.

No. WD86090

Court of Appeals of Missouri, Western District, Third Division

January 16, 2024

Appeal from the Circuit Court of Cole County, Missouri The Honorable J. Hasbrouck Jacobs, Judge

Before Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Cynthia L. Martin, Judges

Karen King Mitchell, Judge

ModivCare Solutions, LLC (ModivCare) appeals the trial court's judgment in favor of respondents, the Office of Administration for the State of Missouri and its Division of Purchasing and Materials Management (OA), on ModivCare's petition challenging OA's award of a contract for non-essential medical transportation services to

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another bidder, Medical Transportation Management, Inc. (MTM). ModivCare raises one point of error: that the trial court erred in failing to find that the OA evaluators acted unlawfully or abused their discretion when applying the Request for Proposal's adjectival ratings to the bids submitted by ModivCare and MTM because the evaluators substituted "guesswork" and "used an unfair and inconsistent process" resulting in ModivCare's losing the contract to MTM. Finding no merit in ModivCare's argument, we affirm.

Background^[1]

On December 23, 2021, OA issued its Request for Proposals No. 30034902200493 (RFP), inviting vendors to submit competitive, sealed proposals to provide brokered non-emergency medical transportation (NEMT) services for several Missouri agencies, including the Department of Mental Health and MO HealthNet Division. The successful bidder would provide or arrange for the provision of transportation to non-emergency healthcare appointments for Medicaid recipients. At that time, ModivCare was the vendor providing those services to the state under a contract awarded in 2016, which would expire on November 30, 2022. The new contract would run from its effective date through June 30, 2027. Several potential vendors, including ModivCare and MTM, bid under the RFP. On May 25, 2022, the contract was awarded to MTM. ModivCare submitted a bid protest, which was denied by OA on August 31, 2022. ModivCare filed a petition for judicial review in the Cole County Circuit Court on September 23, 2022, but

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no temporary restraining order or preliminary injunction was sought to prevent the transition of the NEMT contract. On December 1, 2022, MTM began providing NEMT brokerage services pursuant to the contract awarded under the RFP. Following a bench trial, ModivCare's challenge to the award of the contract was denied, and ModivCare appeals.

The RFP explained that bids would be evaluated based on three categories: "Cost Proposal," "Technical Proposal," and "MBE-WBE Participation" (MBE-WBE standing for "Minority Business Enterprise/Women Business Enterprise"). Both the "Cost Proposal" and "MBE-WBE Participation" categories were to be scored objectively.

The "Technical Proposal" category was to be scored subjectively, by an evaluation committee, according to the evaluation criteria in § 4.6.2 and Attachment 21 of the RFP, which provided five defined "adjectival ratings" as possible scores: Distinctive, Superior, Satisfactory, Marginal, and Unsatisfactory. Each category described the characteristics necessary to achieve that rating and the numerical score associated with it. Attachment 21 provided three sub-categories for "Technical Proposal": (1) "Proposed Methodology, Approach, and Work Plan"; (2) "Vendor Personnel Qualifications"; and (3) "Past Performance." This appeal concerns only the third sub-category ("Past Performance"), which contains two sub-categories ("Overall Relevant Vendor Experience" and "Case Studies"). These sub-categories were evaluated using the following adjectival definitions in Attachment 21 (no separate definitions were given for "Overall Relevant Vendor Experience"):

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Scoring of Past Performance

The state will assess the Vendor's Past Performance based upon the adjectival categories in Table 5:

TABLE 5
CASE STUDY REFERENCE
Rating	Definition
Distinctive	Past performance was recent and involved essentially the same scope and magnitude of effort and complexities required in this RFP. Reference indicated past performance significantly exceeded overall requirements and expectations; delivered significant and/or innovative impact.
Superior	Past performance was recent involved similar scope and magnitude of effort and complexities required in the RFP. Reference indicated past performance exceeded requirements on some dimensions.
Satisfactory	Past performance was relatively recent and involved some of the scope and magnitude of effort and complexities required hi the RFP. Reference indicated past performance met minimum requirements.
Marginal	Past performance met requirements, but only after significant extra effort, significant delay, significant scope revisions were found necessary, and/or other adverse factors.
Unsatisfactory	Past performance is not relevant to the requirements in the RFP. or resulted in failed project/work due to mainly to the fault of the vendor.

The adjectival rating for each Past Performance Reference Case Study will have a point value as shown in Table 6:

REVISED PER ADDENDUM 01

TABLE 6
Distinctive	Superior	Satisfactory	Marginal	Unsatisfactory
Overall Relevant Vendor Experience	30	25	18	10	0
Case Studies	15	11	8	4	0

The RFP required the evaluators to compare the information in each vendor's bid with the adjectival ratings' definitions to determine the vendor's rating in that category, from "Distinctive" to "Unsatisfactory," measuring each bid against those standards. The RFP did not provide for a bid to be compared with any other vendor's bid.

Section 4.10.1 of the RFP instructed that each vendor should provide its "overall relevant experience and three (3) past performance case studies" regarding the vendor's work within the past three years. In completing the "past performance case studies," vendors were instructed to "summarize the project's context, objectives, approach, and impact achieved relevant to this RFP." In addition, each case study should "include the

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name and contact information for a client representative who can speak to the scope, quality, and impact of the vendor's work." However, the RFP also told vendors that "[t]he State of Missouri may or may not contact these references during the review process...." The RFP's "Terms and Conditions" provided that "[w]hen evaluating a proposal, the State of Missouri reserves the right to consider relevant information and fact, whether gained from a proposal, from a vendor, from vendor's references, or from any other source." The RFP provided the following directions regarding the vendor's production of information in the case studies:

Directions to Vendor: The vendor should provide three (3) past performance reference case studies. Each should have been completed in the past three (3) years. At least two (2) should involve work for a state agency of similar scale and complexity as the MO HealthNet Division. The vendor should copy and complete this Exhibit for each case study presented. The three (3) case studies should represent the vendor's most relevant and recent experience that most closely aligns with the vendor's services proposed herein.

Both ModivCare and MTM submitted bids and received the "Superior" rating for "Past Performance." The evaluators did not contact any client representatives for ModivCare, MTM, or the other two vendors who submitted bids, nor did the evaluators compare the bids against each other. In their bids, ModivCare presented three case studies (from Oklahoma, Maine, and West Virginia) and MTM presented three case studies (from the District of Columbia, Nevada, and Missouri (for United HealthCare of Missouri))^[2]

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in support of their past performance scores. OA and MTM do not dispute that ModivCare is a larger company with more nationwide experience than MTM.

The scoring of bids was done by a committee comprised of three evaluators. A maximum of 218 points was available under the RFP, with 45 points allocated to "Past Performance." Of those 45 points, 30 were allocated to "overall relevant vendor experience" and 15 to "case studies." The committee determined that ModivCare earned "Superior" ratings for both overall experience and case studies, resulting in a "Superior" rating for "Past Performance" based on a total of 36/45 points (25/30 points for "overall relevant vendor experience" and 11/15 points for "case studies"). MTM received the same "Past Performance" scores and earned the "Superior" rating in that category.

A Procurement Supervisor with OA's Division of Purchasing prepared a narrative report (Report) explaining how the various bids were scored. Although she sat in on meetings with the evaluators and took notes, the Procurement Supervisor was not a member of the evaluation team and did not personally score the bids. The Report explained ModivCare's rating in past performance as follows:

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ModivCare Solutions, LLC
Element	Adjectival Rating	Score	Rationale to support the rating/score. Simple explanation justifying the rating/score given.
Overall Relevant Vendor Experience	Superior	25	ModivCare has been providing NEMT services for 26 years and has been providing NEMT services for the State of Missouri more than 15 years. Currently, ModivCare is providing NEMT services for 15 state-based programs totaling 48 million trips...