HONORABLE DAN PELLEGRINI, Senior Judge

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA UnitedHealthcare of Pennsylvania, Inc., Petitioner V. Department of Human Services, Respondent No. 1978C. D Argued: January 12, 2017 BEFORE: HONORABLE DAN PELLEGRINI, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: January 20, 2017 Before the Court is Petitioner UnitedHeaIthcare of Pennsylvania, Inc. 's (UnitedHealthcare) application for supersedeas in which UnitedHealthcare requests a stay of the November 28, 2016 Final Determination of the Department of Human Services (DHS) denying UnitedHealthcare's Bid Protest No BP- 1L Inthat request, UnitedHealthcare asks for a stay of all related procurement activities including solicitation, negotiation with the intended awardees, award of contracts, and implementation ofdhs's Request for Proposal No (RFP 12-15) pending resolution of UnitedHeaIthcare's appeal of the Final Determination. For the following reasons, the application for supersedeas is denied.

2 I. DHS, formerly known as the Department of Public Welfare, is the state agency that administers the Commonwealth's Medicaid program. Armstrong County Memorial Hospital v. Department of Public Welfare, 67 A. 3d 160, 163(Pa. Cmwlth. 2013). DHS delivers Medicaid benefits in the Commonwealth "through two (2) payment systems-(1) 'fee-for-service, ' where the provider of the care is paid on a claim basis; and (2) 'managed care, ' where an intermediary managed care organization (MCO), under contract with [DHS], is paid on a monthly, fixedfee basis per enrollee. " Id. UnitedHealthcare is a Pennsylvania corporation licensed to operate as a health maintenance organization (HMO) in the Commonwealth and has been serving Medicaid members in the Commonwealth, through its predecessor companies, since On March 1, 2016, DHS issued RFP to procure the services of licensed HMOs to operate as MCOs and implement a new Managed Long-Term Services and Supports (MLTSS) program for older Permsylvanians and adults with physical disabilities. This new program is called the Community HealthChoices (CHC) Program and it will be implemented in every county in the Commonwealth. The CHC Program will provide participants with their physical health services and long-term services and support (LTSS), as well as simultaneous services from a Dual-Eligible Special Needs Plan (D-SNP). As explained in more detail by DHS: At the outset, we note that "[t]he Procurement Code does not provide a 'rigid, detailed procedure or strict requirements for the RFP process, ' but 'preserves a great deal of agency discretion.... '" CenturyLink Public Communications, Inc. v. Department of Corrections, 109 A. 3d 820, 822 n.2 (Pa. Cmwlth. 2015) (quoting Stanton-Negley Drug Company v. Department of Public Welfare, 943 A.2d 377, 387 (Pa. Cmwlth. 2008), appeal denied, 959 A.2d 321 (Pa. 2008)).

3 RFP No is not a typical procurement of services, but rather seeks to secure critical physical health services and... LTSS for vulnerable populations. The Commonwealth's visions for the CHC Program is to have an integrated system of physical health and LTSS that allows older adults and adults with disabilities to live safe and healthy lives in the most integrated setting possible and with as much independence as possible. For physical health services, the CHC Program will improve coordination of services, quality of care, health outcomes and participant-reported experience of care, and promote innovative solutions to facilitate the achievement of Program goals. For LTSS, the CHC Program will serve more people in the community, improve coordination of multiple types of services, quality of services and LTSS supports and participant-reported experience of services and supports, and promote innovative solutions to facilitate the achievement of Program goals. RFP No will result in a complex healthcare agreement with each MCO, with numerous service requirements and a need for the MCOs to coordinate care and LTSS for multiple populations and across multiple healthcare programs. As part of the CHC Program design and development of RFP No , [DHS] engaged in extensive outreach and solicited feedback from stakeholders, including potential CHC Program participants and family members, advocacy organizations, service providers of physical health services and LTSS, MCOs, and care coordination agencies. These efforts included the publication of a -public-discussion -document-in-june-2015, -a-chc- Concept Paper in September 2015, a draft RFP and program requirements document in November 2015, and a draft CHC agreement in December [DHS] also conducted monthly MLTSS Sub-Medical Assistance Advisory Committee meetings beginning in September 2015, and multiple webinars on the implementation of CHC for this same audience. As a result of its efforts, [DHS] received more than 3, 500 comments that were used to design the CHC Program, including the RFP and draft CHC agreement.

4 (Respondent DHS's Brief in Opposition to Supersedeas pp. 1-3.) RFP specifies five geographic zones of service throughout the Commonwealth - the Southeast, Southwest, Lehigh/Capital, Northwest and Northeast zones. Offerors were permitted to submit proposals in one or more zones and DHS, through an Evaluation Committee aided by subject matter experts, separately evaluated and scored proposals for each zone. RFP indicates that DHS "anticipates awarding agreements to no fewer than two and no more than five" offerors in each CHC zone. (RFP 12-15, Part I, Section 1-5 at p. 5. ) RFP also specifies that the technical aspects of the proposals would account for 80% of the scoring, the Small Diverse Business (SDB) portion would account for 20% of the scoring, and offerors can receive up to 3% in bonus points for committing to Domestic Workforce Utilization. To be considered a responsible offeror eligible for selection, an offeror is required to earn at least 70% of the available technical points for its proposal. RFP specifically stated that the Department of General Services (DOS) would score the SDB portion of the proposals. Proposals were due by May 2, 2016, and DHS received proposals from 14 MCOs, including-14 proposals for the Southeast zone, 8 for the Southwest zone, 12 for the Lehigh/Capital zone, 9 for the Northwest zone, and 9 for the Northeast zone. UnitedHealthcare submitted proposals for all 5 zones. In addition, a pre-proposal conference was held on March 16, 2016, wherein potential offerors were given the opportunity to submit questions to the Procurement Officer regarding RFP DHS's official responses to these questions were incorporated into RFP by addendum.

5 On August 30, 2016, DHS announced it had selected the following 3 plans because their proposals achieved the 3 highest scores for each zone: Pennsylvania Health and Wellness (PA H&W), UPMC for You, Inc. (UPMC), and AmeriHealth Caritas (collectively. Selected Offerors). DHS informed UnitedHealthcare in its August 30, 2016 non-selection letter of the identity of the Selected Offerors and that UnitedHealthcare's proposals were not selected as the most advantageous to the Commonwealth because they were not among the top ranked proposals in each of the 5 zones. UnitedHealthcare immediately requested a debriefing, which DHS conducted on September 15, DHS provided UnitedHealthcare with the following documentation and information during the debriefing: a written debriefing script, which was also read aloud; the ranking of its proposals (including overall, technical, SDB, and Domestic Workforce Utilization rank) for all zones in relation to the proposals submitted by other offerors; multiple strengths and weaknesses identified by the Evaluation Committee; and a redacted Selection Memorandum containing UnitedHealthcare's scores as well as other information concerning the procurement process. Notably, no one from DOS was present at _the^ebriefing. DHS provided UnitedHealthcar^theoppprtunitytpask questions and seek clarification as to the debriefing, which it did. UnitedHealthcare was informed during the debriefing that it finished fourth in the scoring for each of the five zones. On August 30, 2016, UnitedHealthcare also submitted a request for records to DHS pursuant to the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S

6 UnitedHealthcare filed its initial bid protest on September 22, 2016, in which it requested an evidentiary hearing and raised the following protest issues: PA H&W is not a responsible offeror because it failed to secure a Certificate of Authority (CoA) by the deadline specified in RFP 12-15; DHS's scoring and selection based on the D-SNP criteria was arbitrary and capricious because PA H&W has no current D-SNP presence in the Commonwealth and AmeriHealth Caritas has no current D-SNP presence in the Southwest zone; Healthcare Effectiveness Data and Information Set (HEDIS) scores were improperly weighted by the Evaluation Committee to the detriment of UnitedHealthcare and to the advantage of PA H&W because PA H&W does not currently operate as a commercial HMO in Pennsylvania; DHS's award to UPMC is arbitrary and capricious because UPMC does not have LTSS or MLTSS experience; SDB scores were improperly evaluated because DHS and DGS failed to evaluate whether the proposed vendor actually had the capability to provide the allocated services; the debriefing did not conform to the standards reasonably expected by offerors and necessary to provide due process under the Commonwealth Procurement Code (Procurement Code), 62 Pa. C. S ; and UnitedHealthcare's bid protest must be continued because it has not been provided critical documents to support its protest. On September_3Q, 2016, UnitedHealthcare filed a supplemental bid protest arguing that DHS engaged in the disparate treatment of offerors with respect to the provision of information and reiterating its request for an evidentiary hearing. UnitedHealthcare again requested an evidentiary hearing, which was denied. United Healthcare's bid protest resulted in an automatic stay of the procurement process pursuantto Section l(k) ofthe Procurement Code, 62 Pa. C. S l(k).

7 On October 18, 2016, DHS's Office oflong-term Living (OLTL) filed a consolidated response to the initial and supplemental protests asserting that many ofunitedhealthcare's protest grounds were untimely and that none of them had merit. OLTL's response included several documents, including an unredacted copy of the Selection Memorandum. UnitedHealthcare filed its reply to OLTL's response on October 28, On November 28, 2016, Glenn E. Williams, Director of DHS's Bureau of Administrative Services (Director Williams), issued a Final Determination denying both UnitedHealthcare's initial and supplemental bid protests. Director Williams determined that many ofunitedhealthcare's grounds for protest were untimely filed. However, he also ruled on the merits of each of the grounds for protest and found that DHS did not act contrary to law. On December 9, 2016, UnitedHealthcare filed a petition for review (Petition) with this Court appealing Director Williams' denial of its bid protest. For the reasons raised in its initial and supplemental bid protests, UnitedHeaIthcare asserts that DHS's decision to choose the Selected Offerors in all 5 zones - and not JJmtedHealthcare - was arbitrary and capricious, an abuse of discretion and contrary to law. UnitedHealthcare also asserts that DHS's failure and refusal to provide it with the requested documentation as well as an evidentiary hearing constitutes a denial of due process and has left it without means to assert a meaningful bid protest. According to UnitedHealthcare, DHS failed to create a proper or complete administrative record for this Court to review on appeal, and Director Williams gave undue deference to OLTL's response to its protest 7

8 grounds. UnitedHealthcare asserts that the Final Determination is contrary to law and public policy because it reflects a lack of independent evaluation or consideration of the arguments set forth in UnitedHealthcare's protests. Finally, UnitedHealthcare argues that Director Williams erred in determining that its grounds for protest were untimely. On December 9, 2016, UnitedHealthcare filed an application for supersedeas and a hearing was held. At the hearing on the application, neither party presented testimony, instead making arguments supporting their respective positions. II. To obtain a supersedeas, it is required that: 1. The petitioner makes a strong showing that he is likely to prevail on the merits. 2. The petitioner has shown that without the requested relief, he will suffer irreparable injury. 3. The issuance of a stay will not substantially harm other interested parties in the proceedings. 4. The issuance of a stay will not adversely affect the public interest. Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805, (Pa. 1983). Because an application for stay pending appellate review involves a situation where the merits of the case have been fully considered and a final determination rendered, the applicant must make a strong showing to justify the 8

9 issuance of a stay. Id. at 809. Our Supreme Court has also noted that courts should not consider the first prong inflexibly, id., and we "may properly grant a stay, even when a litigant has presented a substantial case on the merits, if the litigant's showing with regard to the remaining three factors strongly supports the applicant's request. " Goslin v. State Board of Medicine, 937 A.2d 531, 534 (Pa. Cmwlth. 2007) (citing Witmer v. Department of Transportation, Bureau of Driver Licensing, 889 A.2d 638, 640 (Pa. Cmwlth. 2005)). Nonetheless, whether to grant or deny a stay pending appeal is a decision soundly within the discretion of this Court. Goslin, 937 A. 2d at 534. In determining whether to grant a stay, naturally we must consider our scope of review involving a challenge of a bid award. Section 171 l. l(i) of the Procurement Code states that in reviewing a determination denying a bid protest, '[tjhe court shall hear the appeal, without a jury, on the record of determination certified by the purchasing agency. The court shall affirm the determination of the purchasing agency unless it finds from the record that the determination is arbitrary and capricious, an abuse of discretion or is contrary to law. " 62 Pa. C. S (0. As the party challenging RFP 12-15, UnitedHealthcare has the heavy burden of demonstrating that DHS abused its discretion. Stanton-Negley Drug Co. v. Department of Public Welfare, 943 A.2d 377, 387 (Pa. Cmwlth. 2008), appeal denied, 959 A. 2d 321 (Pa. 2008) (citation omitted). '"An abuse of discretion is not merely an error in judgment;' rather, '[a]n abuse of discretion occurs if, in reaching a conclusion, the law is overridden or misapplied or

10 judgment exercised is manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will. '" CenturyLink Public Communications, Inc. v. Department of Corrections, 109 A. 3d 820, 827 n. 13 (Pa. Cmwlth. 2015) (quoting Henderson v. Unemployment Compensation Board of Review, 77 A. 3d 699, 713 (Pa. Cmwlth. 2013)). With these standards in mind, we look to determine whether UnitedHealthcare is entitled to a supersedeas. III. UnitedHealthcare argues that good cause exists for granting a stay of all procurement related activities for RFP because it is likely to prevail on the merits of its arguments in support of the bid protest grounds in the underlying appeal. A. First, UnitedHealthcare claims that DHS erred in denying its bid protest with respect to the offerors' SDB submittals because DHS failed to provide any oversight_of_ pr inpjjt_ regarding _DGS's _. evaluation.. _According _to UnitedHealthcare, DHS did not conduct an independent evaluation of DGS's scormg of the SDB submittals and DOS's "evaluation would be necessarily be [sic] inadequate because DOS lacks any specialized knowledge, experience or expertise in the arena of medical services offerings. Thus... DOS would not have 10

11 the ability to determine the competence of the listed vendor in comparison to other vendors. " (Petition K 140. )5 DHS counters that UnitedHealthcare is unlikely to succeed on the merits of its appeal with respect to the SDB submittals because, as Director Williams found, this protest ground was untimely. Section (b) of the Procurement Code provides the following with respect to the filing of a protest: [Tjhe protest shall be filed with the head of the purchasing agency within seven days after the aggrieved bidder or offeror or prospective contractor knew or should have known of the facts giving rise to the protest except that in no event may a protest be filed later than seven days after the date the contract was awarded. If the protestant is a prospective bidder or offeror, a protest shall be filed with the head of the purchasing agency prior to the bid opening time or the proposal receipt date. If a bidder or offeror, a prospective bidder or offeror or a prospective contractor fails to file a protest or files an untimely protest, the bidder or offeror, the prospective bidder or offeror or the prospective contractor shall be deemed to have waived its right to protest the solicitation or award of the contract in any fomm. 62 Pa. C. S (b). Given this provision, the determinative inquiry is when UnitedHealthcare knew or should have known of the facts giving rise to this claim. While UnitedHeaIthcare did not raise this issue in its initial brief in support of supersedeas, it is raised in its reply brief. Generally, "[a] reply brief... is an inappropriate means for presenting a new and substantively different issue than that addressed in the original brief. " Commonwealth v. Basemore, 744 A. 2d 717, (Pa. 2000) (citation omitted). However, because the SDB issue was clearly raised in UnitedHealthcare's initial bid protest as well as in its Petition, it is addressed here. 11

12 RFP explicitly states that DOS "will review the SDB submittals and provide [DHS] with a rating for this component of each proposal." (RFP Part III, Section III-3 at p. 38.) RFP goes on to explain, in detail, the criteria DGS established for rating the offerors' SDB submittals. UnitedHealthcare then was on notice at the time RFP was issued on March 1, 2016, or at the latest at the time UnitedHealthcare submitted its proposal, that DGS, not DHS, was charged with scoring the offerors' SDB submittals, and any protest UnitedHealthcare wished to file with respect to this provision ofrfp should have been filed "prior to the bid opening time or the proposal receipt date. " 62 Pa. C. S. 171 l. l(b). Because UnitedHealthcare did not file its initial bid protest regarding scoring of the SDB submittals until September 22, 2016, this ground for protest appears to be untimely and UnitedHealthcare is not likely to succeed on the merits of this claim. See CenturyLink, 109 A.3d at ; JPay, Inc. v. Department of Corrections, 89 A. 3d 756, 764 (Pa. Cmwlth. 2014); Grant Street Group, Inc. v. Department of Community and Economic Development, 106 A. 3d 810, 813 n. 5 (Pa. Cmwlth. 2014); Cummins v. Department of Transportation, 877 A. 2d 550 (Pa. Cmwlth. Similarly, UnitedHealthcare's claims regarding the D-SNP and HEDIS criteria appear to be untimely as they were not raised prior to the receipt ofunitedhealthcare's proposal. RFP does not require offerors to have D-SNPs in Pennsylvania at the time of their proposals, or even in the zone for which they were applying, as it states: To provide increased Medicare and MA integration for the Dual Eligibles being served by CHC, the selected CHC-MCOs must have an aligned Dual Eligible Special Needs Plan (D-SNP) and current MIPPA Agreement with [DHS]. For the S[outhwest] (Footnote continued on next page...) 12

13 Moreover, the SDB commitments are limited to administrative services, not "medical services offerings, " and the qualifications and descriptions of subcontractors is clearly contained within RFP Despite (continued...) and Southeast] zones, the aligned D-SNP must be operational by January 1, For the Lehigh-Capital, Northwest, and Northeast zones, the D-SNP must be operational by January 1, ' ' "~-~"' " (RFP 12-15, Part I, Section 1-4 at p. 5.) UnitedHealthcare's protest claims that DHS erred in the scoring and selection of the Selected Offerors because PAH&W has no current D~- SNP presence in Pennsylvania and AmeriHealth Caritas has no current D-SNP presence in the Southwest zone. Because RFP explicitly addresses this issue, UnitedHealthcare's is untimely.!.le(i?.ealthcare's bid Protest also asserts, in essence, that it was treated unfairly w!threspect to, HEDIS sc()ring because it was required to submit its Pennsylvania Medicaid HEDIS rates while ofiferors not currently operating in Pennsylvania did not. Again, this was clearly addressed in RFP as follows: Offerors currently participating in the HealthChoices Program should provide the three most recent completed years ofhealthchoices HEDIS rates. Offerors, who operate as a Commercial Pennsylvania HMO, must provide the three most recent completed years of HEDIS rates for the HEDIS performance measures for a Commercial liiie'of business as-aif [Om-Pennsylvania7 Offerors who do not participate in the HealthChoices Program and who do not operate as a Commercial HMO in Pennsylvania must provide the three most recent years of HEDIS performance measures for a one [sic] Commercial HMO line of business they operate in another state. (RFP 12-15, Part II, Section 11-5 at pp ) Because this requirement was specifically provided in RFP 12-15, UnitedHeaIthcare should have filed a protest regarding this issue prior to the receipt of its proposal. 13

14 UnitedHealthcare's claims, it appears that "DHS reviewed the qualifications of subcontractors, other than providers of direct care services, that were to be used in lieu of offeror staff to carry out the obligations of the CHC Agreement. " (Final Determination p. 19.) Given all of the above, UnitedHealthcare is unlikely to succeed on the merits of its SDB scoring claim. B. UnitedHealthcare also argues that it is likely to succeed on the merits of its argument that DHS acted arbitrarily and capriciously in selecting PA H&W as a Selected Offeror because PA H&W failed to obtain a CoA by the required deadline. RFP states: Participation in the CHC Program will be limited to Commonwealth-licensed HMOs. All CHC-MCOs awarded an agreement for the CHC Program for any zone will be required to have a Certificate of Authority [CoA] to operate as an HMO in Pennsylvania, as well as Pennsylvania Department of Health (DOH) operating authority in each county in each zone for which they are selected, no later than three months prior to the anticipated implementation date of 1/01/2017 for the [Southwest] zone, and no later than three months prior to the anticipated implementation dates for the other zones. (RFP 12-15, Part I, Section 1-4 at p. 4. ) UnitedHealthcare argues that because PA H&W did not obtain a CoA by October 1, 2016, it was not a qualified offeror and should not have been chosen by DHS as a Selected Offeror. DHS counters that on June 9, 2016, DHS informed the offerors that the anticipated implementation date for the Southwest zone was being pushed back to July 1, 2017; therefore, the date by which an offeror had to obtain a CoA was necessarily changed as well. 14

15 UnitedHealthcare maintains that this change in the anticipated implementation date did not affect the deadline for obtaining a CoA because language in the announcement indicated that all other deadlines would remain in place. It is apparent from the explicit language of RFP that any change in the anticipated implementation date would necessarily result in a change in the deadline for obtaining a CoA. RFP clearly states that the deadline is 'no later than three months prior to the anticipated implementation date, " (id.), and UnitedHealthcare's interpretation would render this language mere surplusage. Notably, the requirement for obtaining a CoA pertains to "[a]ll CHC-MCOs awarded an agreement for the CHC Program," and not to all prospective bidders. This undercuts UnitedHealthcare's argument that obtaining a CoA by the indicated deadline was a mandatory requirement for being a qualified offeror. Moreover, courts have repeatedly held that merely phrasing an RFP requirement in the imperative does not necessarily make the requirement mandatory. See Gaeta v. Ridley School District, 788 A.2d 363, (Pa. 2002); JPay, 89 A.3d at 767; Language Line Services, Inc. v. Department of General Services, 991 A. 2d 383, 390 (Pa. Cmwlth. 2010). RFP is filled with imperatives and it is ynrea ;onable_to conclude tha^ every use of_"shall'l_or_"must"_in_ the 47 page document is a mandatory and unwaivable requirement. Also, the paragraph pertaining to CoAs appears in Part I titled "General Information, " and not Part II titled "Proposal Requirements, " which states that "[t]o be considered, the proposal 15

16 must respond to all requirements in this part of the RFP. " (RFP 12-15, Part II at p. 14. )7 In addition, as determined by Director Williams, it appears UnitedHealthcare has waived this argument because it was not timely raised. UnitedHealthcare learned that PA H&W was a Selected Offeror on August 30, If it conducted its due diligence on competing offerors, UnitedHealthcare should have known at the time the selections were made that PA H&W did not have a CoA and, given the rigorous and timely application process, could not obtain one by October 1, 2016; therefore, this issue should have been raised in a bid protest by September 6, See 62 Pa.C. S. 171 l. l(b). Even if we use the date of September 14, 2016 that UnitedHealthcare proposes, the date it purportedly confirmed with the Pennsylvania Insurance Department that Pa H&W's application for a CoA was not yet complete, the bid protest was still untimely because it was filed after September 21, For all of these reasons, UnitedHealthcare is unlikely to succeed on the merits of its claim regarding the CoA requirement. c. "_UnitedHealthcare-claims-that -throughout the bid-protest process, DHS failed and refused to provide it with relevant documents to which it is entitled. According to UnitedHealthcare, it is likely to succeed on the merits of this claim because the withholding of documents has resulted in an incomplete It is further noted that UnitedHealthcare has failed to present any evidence to indicate that PA H&W will not or cannot comply with the requirement of obtaining a CoA. To the contrary, it was discovered during oral argument that PA H&W obtained its CoA on December 28,

17 administrative record for this Court's review, and severely prejudiced or rendered UnitedHealthcare's bid protest meaningless. UnitedHealthcare asserts that without the records it sought from DHS through requests during the debriefing process, requests made in its bid protests, and requests made pursuant to the RTKL,8 it is unable to determine exactly why its proposals were unsuccessful. Section 171 l. l(h) of the Procurement Code states: The record of determination for review by the court shall consist of the solicitation or award; the contract, if any; the protest; any response or reply; any additional documents or information considered by the head of the purchasing agency or his designee; the hearing transcript and exhibits, if any; and the final determination. 62 Pa. C.S. 171 l. l(h). DHS has yet to submit the administrative record in this case to the Court. As such, it is impossible for the Court to analyze whether DHS has complied with this provision and UnitedHealthcare's argument is not yet ripe for review. However, it should be noted that in its brief to the Court as well as during oral argument, DHS proclaimed that the record will contain all of the statutorily required documentation. As recently noted by Senior Judge Quigley in his memorandum and order denying the application for supersedeas filed in the appeal of another disappointed bidder for RFP 12-15, Molina Healthcare of Pennsylvania, Inc. v. Department of Human Services, (Pa. Cmwlth., No. 670 M. D. 2016, filed December 29, 2016), a "[p]etitioner cannot challenge respondent's response or the Office of Open Records' determination of its right-to-know request appeal in the context of a challenge to a bid protest. Neither the Right-to-Rnow Law nor the Procurement Code expressly provides that an action under one law effects proceedings under the other. " (Slip Op. at 5. ) As such, UnitedHealthcare's reliance upon determinations of the Office of Open Records is misplaced because such decisions are inapplicable to its bid protest appeal. 17

18 As to the nature and extent of the documents provided to UnitedHealthcare, I am inclined to agree with DHS that this is not a proper ground for a bid protest. "[T]o be aggrieved for purposes of the Procurement Code, the acts or omission of which that person complains must be connected with the 'solicitation or award of a contract. '" Common Sense Adoption Services, 799 A. 2d at 232 (quoting 62 Pa. C. S. 171 l(a)). DHS's alleged failure and refusal to provide certain documents occurred after August 30, 2016, when DHS announced the identities of the Selected Offerors and the procurement process was essentially completed. As such, the extent of information provided to UnitedHealthcare is unrelated to the solicitation or award of the CHC agreements and UnitedHealthcare is not aggrieved. Id. In addition, the Procurement Code does not impose a duty on the purchasing agency to produce every document the protesting party deems relevant. See JPay, 89 A. 3d at 762. DHS maintains that it provided UnitedHealthcare with all "documents or information considered by" Director Williams in rendering his Final Determination. The Court cannot support a fishing expedition and overturn an agency's Final Determination merely because the petitioner claims it might find relevant information if it were granted additional documents. For these reasons, UnitedHealthcare is not likely to succeed on the merits of its claim. D. In a related argument, UnitedHealthcare contends that it is likely to succeed on the merits of its claim that DHS's failure to provide it with certain documents and failure to hold an evidentiary hearing on its bid protest violates due 18

19 process. Pursuant to Section l(e) of the Procurement Code, 9 whether a hearing to decide a bid protest is necessary is within the sole discretion of the head of the purchasing agency. We discern no abuse of discretion here in Director Williams' decision not to conduct a hearing. See CenturyLink, 109 A.3d at 829: JPay, 89 A.3d at 767; Durkee Lumber v. Department of Conservation and Natural Resources, 903 A.2d 593, 597 (Pa. Cmwlth. 2006) ("decision not to hold hearing can only be reversed if [head of purchasing agency] exercised his discretion with bad faith, fraud, capricious action or abuse of power."). It is well established that a petitioner, including a disappointed bidder on a government contract, is entitled to due process protections only if it has a legitimate claim of entitlement to a property interest or other protected interest. See Stanton-Negley, 943 A.2d at 385; Durkee Lumber, 903 A.2d at Even though UnitedHealthcare may lose out on substantial potential revenue by not being a Selected Offeror, because a disappointed bidder on a government contract has no legitimate expectation or right to have a contract awarded to it. UnitedHealthcare is not likely to succeed on the merits of its claim that its due process rights were violated; Premier Comp Solutions, LLC v. Department of General Services, 949 A.2d 381, _(Pa. Cmwlth. 200&);_Stanton-Negley, 943_ A.2d at 385; Durtee Lumber, 903 A.2d 599. ' That section provides, in pertinent part, that "[t]he head of the purchasing agency or his designee... may, at his sole discretion, conduct a hearing. " 62 Pa. C. S. 171 l. l(e). UnitedHeaIthcare argues that "DHS also committed reversible error in applying a standard of review in [OLTUj's Response that would render the RFP evaluation committee's choice of proposals as a 'determination' under the Procurement Code and would reduce the role of the DHS Secretary or his designee to that of an appellate judge who must defer to the agency (Footnote continued on next page...) 19

20 For all of the above reasons, UnitedHealthcare has failed to make a strong or even substantial showing that it is likely to prevail on the merits and, therefore, has failed to meet its burden with respect to the first prong of the Process Gas standard. IV. As for the second prong of Process Gas, UnitedHealthcare argues that it has already suffered irreparable injury due to DHS's refusal to follow the Procurement Code and the RTKL. UnitedHealthcare cites to Wyland v. West Shore School District, 52 A. 3d 572, 583 (Pa. Cmwlth. 2012), for the proposition that failure to comply with a statute is, per se, irreparable harm. Again, any arguments pertaining to the RTKL are not properly raised in the context of UnitedHealthcare's bid protest. And, as outlined above, I do not fmd it likely that UnitedHealthcare will succeed on its various claims that DHS violated the Procurement Code. (continued...) below... in making his own 'determination.'" (UnitedHealthcare's Brief in Support of Supersedeas at 23.) It appears UnitedHealthcare misunderstands the deferential standard of review announced in the Procurement Code, that determinations relating to competitive sealed proposals "are final and conclusive unless they are clearly erroneous, arbitrary, capricious or contrary to law." 62 Pa. C. S There is no evidence to support the contention that either OLTL or Director Williams erred in the standard of review employed with respect to UnitedHealthcare's bid protest. Moreover, both OLTL and Director Williams provided lengthy, detailed explanations for their determinations and clearly addressed all of the issues raised in the bid protests, and UnitedHealthcare's contention that there was a lack of independent evaluation is meritless. 20

21 UnitedHealthcare also argues that without the supersedeas it will suffer irreparable injury because DHS will be permitted to proceed with contract negotiations and awards to the Selected Offerors, and "UnitedHealthcare will lose out on a business opportunity that is aligned with the organization's experience and core competency. " (UnitedHealthcare's Brief in Support of Supersedeas at 27.) However, before contracts can be awarded, DHS must conduct a series of meetings with the Selected Offerors; determine the actuarial soundness of rates and then negotiate and finalize rates; and obtain the approval of multiple Commonwealth signatories as well as three separate offices of the federal government. Therefore, DHS represented to the Court that it anticipates that negotiations and the readiness review process will take up to nine months to complete. This weighs heavily against any purported irreparable injury as the Court can proceed to the merits ofunitedhealthcare's appeal and a decision can be rendered before the contract is executed. Moreover, UnitedHealthcare remains an ongoing business and will not lose any current business if a stay is not granted because CHC is a new program that has yet to be implemented, and no MCOs currently provide services in the Commonwealth under the CHC Program. See Moling Healthcare of Pennsylvania, Inc. v. Department jsf Human Services, (Pa. Cmwlth., No. 670 M. D. 2016, filed December 29, 2016), Slip Op. at 6. V. As for the final two prongs of the Process Gas standard, we note that a stay of all procurement activities related to RFP will inevitably delay 21

22 implementation of the CHC Program and the provision of much needed and improved services to our elderly and vulnerable populations. Such a delay would adversely affect the public interest as well as the intended beneficiaries of the CHC Program. Protection of UnitedHealthcare's private business interest should not be elevated over the several hundred thousand individuals in need of CHC services throughout the Commonwealth. Accordingly, because UnitedHealthcare has failed to meet the standard announced in Process Gas, its application for supersedeas is denied..'^^ s " DAN PELLEGRINI^Senior Judge 22

23 IN THE COMMONWEALTH COURT OF PENNSYLVANIA UnitedHealthcare of Pennsylvania, Inc., Petitioner V. Department of Human Services, Respondent No. 1978C. D ORDER AND NOW, this 20th day of January. 2017, Petitioner UnitedHealthcare of Pennsylvania, Inc. 's application for supersedeas is denied. ^z^ s " DAN PELLEGRINI, i^nior Judge

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