A protest of the award of the state’s $8 billion Medicaid managed care contracts filed last Friday by Anthem raises a new set of questions about the management of the procurement and the Finance Cabinet’s adherence to Kentucky’s Open Records Act. (Note: Anthem provided a copy of their protest at the request of the Center for Open Government).
For a contract as large and as high-profile as the MCO contract, the process is structured to ensure a level playing field for all the bidders during the evaluation phase and, importantly, after the awards are made. Kentucky’s Model Procurement Code includes provisions for unsuccessful bidders to challenge the decision awarding contracts. Protests are not only common, they are a near certainty in solicitations the size and scope of Medicaid managed care.
Vendor proposals are scored by selection committees. These committees are made up of a mix of state employees – both political appointees and career civil service – to score and rank proposals. Selection committees are critical to ensuring (to the greatest extent possible) political favoritism isn’t a factor in awarding state contracts.
Members of the MCO selection committee were required to sign an “Evaluation Committee Member Agreement.” The agreement included this provision:
Open Records – Consensus scoring and justification will be ORR after the award. Preliminary notes, emails, etc. are also subject to ORR and/or discovery. Please keep your comments appropriate. Keep all documentation secure indefinitely, this includes your proposals and any notes.
This statement from Anthem’s protest caught our eye:
(the) Cabinet either directed the scorers to destroy their notes and individual score sheets or not to take notes or maintain individual score sheets in the first place, despite directing scorers to sign contracts requiring them to maintain all of their notes and individual score sheets.
Let’s state at the outset, there is no evidence CHFS or the Finance Cabinet directed scorers to destroy their notes and scoresheets or not to take notes or maintain individual scoresheets. There are documents, however, that raise a new set of questions about how this procurement has been handled by this administration.
In an email obtained by Anthem (included as an attachment to their protest), David Gutierrez, a member of the MCO selection committee, wrote to Amy Monroe at the Finance Cabinet, “I hope this won’t be a problem, but I do still have my score sheets.”
We asked Anthem if the Finance Cabinet provided a copy of the scoresheet referenced in the Gutierrez email and, if so, could they provide a copy to us? Anthem agreed to the request.
Nothing jumped off the page from our first review of the scoresheet. It appears to be exactly what Committee members are asked to do: take notes, make comments, raise questions and provide their individual score.
We asked Anthem if the Finance Cabinet provided other score sheets from selection committee members. We were told the Gutierrez scoresheet was the only one provided. The Center will be submitting its own Open Records Request for any individual notes or score sheets related to the MCO procurement.
Three questions that deserve answers from the Finance Cabinet:
- Did other members of the MCO scoring committee develop their own individual scoresheets and/or keep notes as part of the evaluation of the vendor proposals? If not, why not?
- If other MCO scoring committee members did develop their own scoresheets and/or keep notes, why were they not provided as part of the response that produced the Gutierrez scoresheet?
Members of the selection committee were given guidance on retaining their documents related to the scoring process with an explicit acknowledgement those materials are subject to ORRs and discovery. We would be very surprised if only one member of the selection committee kept notes. Notes and scoresheets like the one produced by Gutierrez are the norm, not the exception.
The MCO contract already has a cloud hanging over it with Molina’s retention of a well-connected consultant for their second bid.
Decisions related to protests are decided by the Secretary of the Finance Cabinet. After that, it’s the courts. The Finance Cabinet should make every effort to be completely transparent about the process that selected the winning vendors for $8 billion in state business.