Background
Maine DHHS solicited proposals in 2023 for medical nonemergency transportation services in eight transit regions. ModivCare Solutions, LLC received the highest overall score in every region and was awarded all eight contracts. Penquis C.A.P., Inc., the incumbent provider in Regions 3 and 4, challenged the awards to ModivCare in Regions 2, 3, 4, and 8.
During the administrative appeal, Penquis sought DHHS records through Maine’s Freedom of Access Act, including records concerning providers’ past performance. The DAFS appeal committee declined to postpone its hearing until all requests were completed. It ultimately upheld the awards, and the Business and Consumer Docket affirmed.
The Court’s Holding
The Maine Supreme Judicial Court affirmed. The procurement statute and Administrative Procedure Act allowed Penquis to present relevant evidence it possessed, but did not create a right to obtain discovery through FOAA before the procurement appeal hearing. The requested past-performance records were also not shown to be relevant because the review panel did not consult them during the bidding process.
The Court also held that the record did not compel a finding, by clear and convincing evidence, that the procurement was unlawful, fundamentally unfair, arbitrary, or capricious. Errors in individual reviewers’ notes were addressed through consensus scoring; the consensus notes adequately supported the scores; and Penquis did not establish disparate treatment concerning COVID-19 transportation or prior corrective-action plans. The Court lifted its stay of the contract awards.
Key Takeaways
- Procurement appeal procedures do not provide a right to obtain agency records through FOAA before a hearing.
- Minor errors in individual evaluator notes do not establish fundamental unfairness when consensus scoring resolves them.
- Consensus scoring need not use a granular mathematical rubric if the record substantively supports the scores.
Why It Matters
The decision reinforces the limited scope and expedited nature of Maine procurement appeals. A disappointed bidder must prove a statutory or regulatory violation, fundamental unfairness, or an arbitrary or capricious award with clear and convincing evidence—not merely identify imperfections in the evaluation process.
It also confirms that public-records requests cannot be used as a substitute for formal discovery in a procurement appeal.