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April 2, 2026 Get Citation Alerts Download PDF Add Note

Gateway Health Plan, Inc. d/b/a Highmark Wholecare v. DHS

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 147 & 526 C.D. 2025
• Precedential Status: Non-Precedential

• Judges: Wojcik

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.2K)

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Lead Opinion

                        by Wojcik

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gateway Health Plan, Inc. : CONSOLIDATED CASES
d/b/a Highmark Wholecare, :
:
Petitioner :
:
v. : No. 147 C.D. 2025
: No. 526 C.D. 2025
Department of Human Services, : Argued: October 9, 2025
:
Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 2, 2026

In these consolidated appeals, Gateway Health Plan, Inc. d/b/a
Highmark Wholecare (Highmark) petitions for review of two final determinations
of the Designee (Designee) for the Secretary of the Pennsylvania Department of
Human Services (DHS), dated January 21, 2025, and April 14, 2025
(Determinations), denying Highmark’s bid protests related to the Request for
Application No. 31-22 (RFA) for the Community HealthChoices (CHC) managed
care procurement and associated award. Highmark challenges the integrity and
legality of DHS’s procurement process and claims that DHS failed to follow the law
and solicitation requirements. After careful review, we reverse the Determinations
and cancel the award of the RFA.
I. Background
On January 30, 2024, DHS, through its Bureau of Procurement and
Contract Management, issued the RFA seeking applications from Managed Care
Organizations (MCOs) to administer the CHC program in five geographic zones
(Northeast, Southeast, Lehigh-Capital, Northwest, and Southwest), which cover all
67 counties within the Commonwealth. Reproduced Record (R.R.) at 38a-86a; see
id. at 43a-44a (Map). The CHC program is Pennsylvania’s mandatory managed care
program for individuals receiving both Medicare and Medicaid, known as Medical
Assistance (MA) in Pennsylvania, and individuals who qualify for MA long-term
services and supports. Id. at 18a. The CHC program provides assistance to eligible
individuals by providing home and community-based waiver services or nursing
facility services. Id.
The deadline to receive applications was initially March 15, 2024, but
was extended to April 1, 2024. The RFA anticipated awarding contracts to no fewer
than three and no more than five applicants in each zone. Applicants were permitted
to submit an application for one or more zones, provided that the applicant submitted
“zone-specific technical and [Contractor Partnership Program (CPP)] information in
separate tabs and separate [Small Diverse Business (SDB)] and [Veteran Business
Enterprise (VBE)] Submittals by zone . . . .” R.R. at 46a.
The RFA provided four mandatory, nonwaivable responsiveness
requirements. Specifically, to be eligible for selection, applications were required
to be (1) timely received, (2) properly signed, (3) contain a compliant SDB submittal,
and (4) contain a compliant VBE submittal. R.R. at 58a. The RFA provided that
DHS could “(1) waive any other technical or immaterial nonconformities in an

2
Applicant’s application, (2) allow the Applicant to cure the nonconformity, or (3)
consider the nonconformity in the scoring of the application.” Id.
To be considered responsible and, thus, eligible for selection for
negotiations, applicants’ technical submittals were required to achieve a total raw
score of greater than or equal to 75% of the available raw technical points. R.R. at
59a. Each applicant was also required to demonstrate that it “possesses the financial
capability for the good faith performance of the Agreement.” Id. The RFA stated
that the Technical Criterion was assigned 100% of the total points based on four
evaluation factors: (1) Soundness of Approach, (2) Applicant Qualifications, (3)
Personnel Qualifications, and (4) Understanding the Project. Id. at 58a-59a.
The RFA provided that the Issuing Office would combine the
evaluation committee’s final technical scores, rank responsible Applicants by zone
according to their total overall score assigned to each in descending order, and select
for negotiations for each zone the applicants with the highest overall score. R.R. at
60a-61a. The scoring involves a formula giving the highest raw score full points and
scaling others accordingly. Id. After selection for negotiations, DHS would notify
all applicants in writing of the selected applicants. Id. at 55a. The RFA provided
that applicants not selected could request a debriefing upon notification of non-
selection. Id. at 55a-56a.
On March 29, 2024, Highmark submitted an application for all five
zones. Seven other applicants also applied for all regions, including Pennsylvania
Health and Wellness, Inc. (PHW), UPMC for You, Inc. (UPMCFY), Health Partners
Plans (Health Partners), Aetna Better Health of Pennsylvania, Inc. (Aetna), and Vista
Health Plan, Inc. (Vista) (collectively, Selected Applicants), which were ultimately
selected by DHS for award negotiations, and UnitedHealthcare of Pennsylvania, Inc.

3
(United)1 and Geisinger Health Plan (Geisinger),2 which were not selected. See R.R.
at 311a.
After opening applications, DHS determined that it was unable to open
portions of two applications for technical reasons. DHS considered the applications
as technically nonconforming and allowed the affected applicants – Aetna and Vista
-- to resubmit those portions of the applications that were inaccessible. Both
applicants resubmitted the nonconforming portions along with declarations that the
contents contained therein were unchanged except for technical modifications to
enable DHS to open the documents.
On August 19, 2024, Eric McCoy (McCoy), the RFA’s Issuing Officer,
sent a Recommendation for Grantee Selection (Recommendation Memo) to DHS
advising that the evaluation was complete and recommending five applicants for
agreement negotiations based on overall scoring. R.R. at 308a-15a. Specifically:

Technical Technical Technical Technical Technical
Applicant Score: Score: Score: Score: Score:
Northeast Northwest Lehigh/ Southeast Southwest
Capital

Aetna Better Health, Inc. 909.6 909.6 909.6 909.6 909.6

Geisinger Health Plan 891.25 891.25 891.25 891.25 891.25

Health Partners Plans, Inc. 926.90 926.90 926.90 926.90 926.90

Highmark Wholecare, Inc. 886.63 886.63 886.63 886.63 886.63

1
United filed the appeal at United Healthcare of Pennsylvania, Inc. v. Department of
Human Services (Pa. Cmwlth., Docket No. 178 C.D. 2025), which was argued seriately with, and
decided on the same day as, this case.

2
It does not appear that Geisinger filed a protest; Geisinger has not intervened in this
appeal.
4
PA Health & Wellness, Inc. 995.72 995.72 995.72 995.72 995.72
UnitedHealthcare of
868.41 868.41 868.41 868.41 868.41
Pennsylvania, Inc.

UPMC For You, Inc. 1,000 1,000 1,000 1,000 1,000

Vista Health Plan, Inc. 948.97 948.97 948.97 948.97 948.97

Applicants NOT meeting 75% Technical Threshold

N/A N/A N/A N/A N/A N/A

Id. at 311a. On August 21, 2024, DHS notified Highmark that it was not selected
for negotiations in any zone. Id. at 20a-21a.
The next day, Highmark requested a debriefing, as permitted under the
RFA and Procurement Handbook. R.R. at 23a-24a. On August 28, 2024, Highmark
timely filed its initial bid protest with DHS, alleging the evaluation was flawed and
unlawful. Between September and December of 2024, Highmark filed three
supplemental protests based on new information obtained through Right-to-Know
Law (RTKL)3 requests. DHS and Selected Applicants responded to each.
DHS Secretary appointed the Financial Policy Advisor of DHS’s Office
of Budget to serve as Designee to evaluate and render final determinations on
Highmark’s protests. See Section 1711.1(e) of the Commonwealth Procurement
Code (Procurement Code), 62 Pa. C.S. §1711.1(e) (“The head of the purchasing
agency or his designee shall review the protest and any response or reply . . . .”).
Designee consolidated the four protests for review and, ultimately, denied them by
first determination dated January 21, 2025 (First Determination). Designee reasoned
that Highmark failed to carry its heavy burden to overcome the presumption that

3
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
5
DHS acted in good faith. First Determination, 1/21/25, at 12-13. Designee found
that DHS selected applicants in accordance with the RFA. Id. at 13-22. Designee
relied on two sworn declarations from McCoy (McCoy Declarations) that the
evaluation criteria were established before the applications were opened and that
each zone was separately evaluated and scored. Id.; see R.R. at 297a-99a, 623a-24a.
On February 5, 2025, DHS provided a debriefing explaining the
strengths and weaknesses of Highmark’s application. R.R. at 782a-87a. Under
Soundness of Approach, DHS identified 12 subcategories that were considered. Id.
Based on the debriefing, on February 12, 2025, Highmark filed another protest,
which Designee denied by second determination dated April 14, 2025 (Second
Determination). Highmark timely appealed both Determinations, which we
consolidated for review. Each of the Selected Applicants and United have
intervened and filed briefs.4

II. Issues
In this appeal, Highmark argues that the Determinations denying
Highmark’s protests were arbitrary and capricious, an abuse of discretion, and/or
contrary to law for the following reasons. First, Highmark contends that DHS failed
to fix or finalize the relative weights of the evaluation factors and criteria prior to
the opening of Applications as required by the Procurement Code5 and the
Procurement Handbook.6 Second, Highmark asserts that DHS failed to disclose the

4
Selected Applicants align with DHS; United aligns with Highmark.

5
62 Pa. C.S. §§101-2311.

6
The Procurement Handbook is available online at
https://www.pa.gov/agencies/dgs/procurement-resources/procurement-handbook (last visited
April 1, 2026).
6
relative weights of the evaluation factors and criteria at any time, which deprived
Highmark of a “Fair Competition” as required by the Procurement Handbook.
Third, DHS failed to evaluate the applications separately by zone, according to zone-
specific criteria, as required by the RFA. Fourth, it claims that DHS’s failure to
provide a debriefing, required under Section I-24 of the RFA and Part 1, Chapter
6(B)(14) of the Procurement Handbook, until after Designee issued the First
Determination rejecting all of Highmark’s pending protest grounds, was a violation
of Highmark’s rights under the Procurement Code. Fifth, Highmark maintains that
DHS accepted late, incomplete, and nonconforming Applications from Aetna and
Vista in violation of the RFA and law. Finally, Highmark contends that DHS failed
to produce relevant documents, namely, workbooks and training materials sent to
the evaluation committee, which were referenced in the McCoy Declarations and
relied upon in denying Highmark’s protests. We begin our review by examining
whether DHS evaluated the applications separately by zone, according to zone-
specific criteria, as required by the RFA.

III. Discussion
A. Failure to Evaluate by Zone
1. Contentions
Highmark, joined by United, argues that DHS’s evaluation of the
applications was arbitrary, capricious, and contrary to law because DHS failed to
evaluate the applications separately by zone, according to zone-specific criteria, as
required by the RFA. The RFA required zone-specific evaluations due to
demographic and geographic differences. All applicants received identical scores
across all five zones. R.R. at 311a. Highmark and United argue that such scoring is
statistically implausible and infers that DHS did not conduct separate evaluations as
required by the RFA and rebutted the presumption of good faith. If Highmark
7
submitted the same application in all five zones, considering the differences in the
zones, Highmark should not have received the same score in each zone. Neither
DHS nor Designee explain this anomaly. This scoring anomaly is also inconsistent
with prior procurements. By comparison, in 2019, DHS issued RFA No. 07-19
(2019 RFA), in which the evaluation criteria and procedure were nearly identical to
those here. See id. at 896a-951a. DHS scored Highmark’s predecessor’s application
differently across each of the geographic zones. See id. at 507a, 514a, 521a.
DHS and Selected Applicants respond that each zone was evaluated
independently, as required by the RFA. The McCoy Declarations confirmed that
zone-specific scoring occurred and that no evaluator submitted a single score across
all zones. Applicants could choose to submit one application for all zones, with
zone-specific differences only if an applicant elected to provide them. Nothing in
the RFA prohibited identical scores or required variation in scoring. The identical
scores across different zones do not prove improper evaluation or failure to abide by
the RFA terms. Highmark’s claims are purely speculative. Highmark failed to carry
its heavy burden of proving the evaluations were not conducted separately by zone.
The burden was never on DHS to disprove Highmark’s assumptions. DHS is entitled
to the presumption of good faith.

1. Analysis To begin, our “review in an appeal from a determination denying a bid protest” is set forth in the Procurement Code. Pepco Energy Services, Inc. v. Department of General Services, 49 A.3d 488, 491 n.3 (Pa. Cmwlth. 2012). Section 561 of the Procurement Code provides that agency determinations relating to competitive sealed proposals are final and conclusive unless they are “clearly

8
erroneous, arbitrary, capricious, or contrary to law.” 62 Pa. C.S. §561; see 62
Pa. C.S. §513(a) and (g); Center for Climate Strategies, Inc. v. Department of
Environmental Protection, 194 A.3d 742, 744 n.6 (Pa. Cmwlth. 2018); CenturyLink
Public Communications, Inc. v. Department of Corrections, 109 A.3d 820, 824 n.7
(Pa. Cmwlth. 2015); Global Tel*Link Corp. v. Department of Corrections, 109 A.3d
809, 813 n.8 (Pa. Cmwlth. 2015). Section 1711.1(i) of the Procurement Code
similarly provides:

The [C]ourt shall hear the appeal, without a jury, on the
record of determination certified by the purchasing
agency. The [C]ourt 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. §1711.1(i).
The “arbitrary and capricious” standard represents a high bar for
disappointed bidders to overcome. See Local Dispensaries, LLC v. Department of
Health, 330 A.3d 550, 555 (Pa. Cmwlth. 2025). An administrative action is
“arbitrary and capricious where it is unsupportable on any rational basis because
there is no evidence upon which the action may be logically based.” Lynch v. Urban
Redevelopment Authority of Pittsburgh, 496 A.2d 1331, 1335 (Pa. Cmwlth. 1985);
see Cary v. Bureau of Professional and Occupational Affairs, 153 A.3d 1205, 1210
(Pa. Cmwlth. 2017) (holding that an agency’s failure to articulate a rational
connection between facts and its decision rendered the action arbitrary and
capricious). The United States (U.S.) Supreme Court has opined that the “scope of
review under the arbitrary and capricious standard is narrow[,] and a court is not to
substitute its judgment for that of the agency.” Motor Vehicle Manufacturers

9
Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43
(1983). Notwithstanding, the U.S. Supreme Court continued:

[T]he agency must examine the relevant data and
articulate a satisfactory explanation for its action including
a rational connection between the facts found and the
choice made. In reviewing that explanation, [the court]
must consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment. . . . The reviewing court
should not attempt itself to make up for [an agency’s]
deficiencies; we may not supply a reasoned basis for the
agency’s action that the agency itself has not given.
Id. (citation and internal quotation marks omitted); accord Cary, 153 A.3d at 1210.
“[A]n abuse of discretion occurs if, in reaching a conclusion, the law is overridden
or misapplied or judgment exercised is manifestly unreasonable or is the result of
partiality, prejudice, bias, or ill will.” CenturyLink, 109 A.3d at 827 n.13 (citation
and quotation omitted). “An error of law occurs where an agency interprets its
governing statutes, regulations, or orders contrary to their clear and plain meaning
or fails to follow its own regulations and procedures.” Aetna Better Health of
Pennsylvania, Inc. v. Pennsylvania Department of Human Services (Pa. Cmwlth.,
No. 652 M.D. 2020, filed November 17, 2021), slip op. at 11 n.7.7
The Procurement Code provides the exclusive procedure for the limited
remedy available for offerors seeking contracts or agreements with state agencies
that are aggrieved by the solicitation, i.e., RFAs or requests for proposals (RFPs), or
award of a government contract. Section 1711.1 of the Procurement Code,
62 Pa. C.S. §1711.1. A bid protestor may file a protest with the head of the

7
Unreported memorandum opinions of this Court filed after January 15, 2008, may be
cited for their persuasive value pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 126(b), and Section 414(a) of the Court’s Internal Operating Procedures,
210 Pa. Code §69.414 (a).
10
purchasing agency. 62 Pa. C.S. §1711.1(a). “A protest shall state all grounds upon
which the protestant asserts the solicitation or award of the contract was improper.”
63 Pa. C.S. §1711.1(c).
Once a protest is filed, Section 1711.1(e) provides:

The head of the purchasing agency or his designee shall
review the protest and any response or reply and may
request and review such additional documents or
information he deems necessary to render a decision and
may, at his sole discretion, conduct a hearing. The head of
the purchasing agency or his designee shall provide to the
protestant and the contracting officer a reasonable
opportunity to review and address any additional
documents or information deemed necessary by the head
of the purchasing agency or his designee to render a
decision.
62 Pa. C.S. §1711.1(e) (emphasis added). The agency head is charged with
determining whether “the solicitation or award of the contract was contrary to law.”
62 Pa. C.S. §1711.1(f). Following review, “the head of the purchasing agency or his
designee shall issue a written determination stating the reasons for the decision.” Id.
If the award is determined to be contrary to the law, the remedy is limited to the
cancellation of the solicitation or proposed award or revision of the solicitation or
proposed award to comply with the law. 62 Pa. C.S. §§1711.1(f), (j), 1711.2(1).
The bid protestant bears the burden of proving that the agency’s
determination was arbitrary or capricious, constituted an abuse of discretion, or was
otherwise contrary to law. BSI Construction, LLC v. Philadelphia Regional Port
Authority, 329 A.3d 36, 44 (Pa. Cmwlth. 2024); Reading Blue Mountain and
Northern Railroad v. Seda-Cog Joint Rail Authority, 235 A.3d 438, 459 (Pa.
Cmwlth. 2020); Stanton-Negley Drug Co. v. Department of Public Welfare, 943
A.2d 377, 387 (Pa. Cmwlth. 2008); A. Pickett Construction, Inc. v. Luzerne County

11
Convention Center Authority, 738 A.2d 20, 24 (Pa. Cmwlth. 1999); J.J.D. Urethane
Co. v. Montgomery County, 694 A.2d 368, 370 (Pa. Cmwlth. 1997). To meet this
burden, a bid protestant must show that the agency “(1) abused its independent
judgment; (2) failed to follow a requirement in the RFP; or (3) incorrectly applied a
scoring criterion.” BSI Construction, 329 A.3d at 44. The burden is a “heavy” one.
J.J.D., 694 A.2d at 370. Absent fraud or collusion, a government agency is entitled
to a presumption that it acted in good faith and in the best interests of the
governmental agency in the procurement process. McIntosh Road Materials Co. v.
Woolworth, 74 A.2d 384, 393 (Pa. 1950); Wilson v. City of New Castle, 152 A.2d
102 (Pa. 1930); Reading Blue Mountain, 235 A.3d at 464; A. Picket Construction,
738 A.2d at 24; J.J.D., 694 A.2d at 370.
Because the Procurement Code governs, “Administrative Agency Law
does not apply to bid protests and appeals of bid protest determinations.”
UnitedHealthcare of Pennsylvania, Inc. v. Department of Human Services, 172 A.3d
98, 105 (Pa. Cmwlth. 2017) (citing 62 Pa. C.S. §1711.1(1)). This means that bid
protestants operate under a different procedural framework. The Procurement Code
does not provide bid protestants the right to a hearing or the “right to production of
documents or other discovery.” Id.; see 62 Pa. C.S. §1711.1; JPay, Inc. v.
Department of Corrections, 89 A.3d 756, 762 (Pa. Cmwlth. 2014). If documents
were not considered by the agency head in reviewing the protest, the documents are
not part of the certified record and will not be considered on appeal. See
62 Pa. C.S. §1711.1(e).
“Section 513 of the [Procurement] Code does not provide ‘rigid,
detailed procedure or strict requirements for the [RFP] process, but preserves a great
deal of agency discretion, including discretion to determine agency needs in

12
preparation of [RFP] requirements.’” Reading Blue Mountain, 235 A.3d at 458-59
(quoting Stanton-Negley Drug, 943 A.2d at 387). However,

the mere possession of discretionary power by an
administrative body does not make it wholly immune from
judicial review, but the scope of that review is limited to
the determination of whether there has been a manifest and
flagrant abuse of discretion or a purely arbitrary execution
of the agency’s duties or functions.
American Totalisator Co. v. Seligman, 414 A.2d 1037, 1041 (Pa. 1980); accord
Reading Blue Mountain, 235 A.3d at 458-59.
Procuring agencies are required to evaluate bids “based on the
requirements set forth in the invitation for bids[.]” 62 Pa. C.S. §512(e). “[A]ll bid
evaluation criteria for a Commonwealth contract solicitation must appear in the
invitation for bids for the specific solicitation.” Center for Climate Strategies, 194
A.3d at 744 (citing Section 512(e) of the Procurement Code, 62 Pa. C.S. §512(e)).
Procuring agencies are bound by the express provisions of their solicitation
documents. American Totalisator, 414 A.2d at 1041; Seda-Cog Joint Rail Authority
v. Carload Express, Inc., 185 A.3d 1232, 1240 (Pa. Cmwlth. 2018), aff’d, 238 A.3d
1225 (Pa. 2020). Agencies must evaluate the proposals based solely on the factors
and subfactors specified in the solicitation. See American Totalisator, 414 A.2d at
1041. An agency’s failure to follow solicitation terms may be grounds for judicial
intervention. Id.; BSI Construction, 329 A.3d at 44.
Per the RFA, applicants were invited to submit an application for one
or more zones. R.R. at 46a, 50a. If submitting an application for multiple zones,
applicants were required to “provide zone-specific technical and CPP information in
separate tabs and separate SDB and VBE Submittals by zone as set forth in Section
I-14.B.” Id. at 46a. More specifically,

13
[I]f an Applicant is submitting for multiple zones, any and
all portions of the Technical and CPP Submittals that
describe different, separate, or additional components
specifically designed to address the RFA requirements in
one particular zone must be provided under separate tabs
of the Applicant’s response for a particular section or
question, and clearly labeled as “Section or Question
[insert number and name of relevant section or question]
CHC [ zone name] Zone” and Section or Question [insert
number and name of relevant section or question] Health
Choices [ zone name] Zone,” respectively. For example,
Applicants will note in Part III, under “Personnel”, the
Department is specifically requesting that any such
different, separate, or additional organizational
structure(s) or personnel be provided under separately
tabbed sections of the Applicant’s application, and clearly
labeled as “Part III, Section III-4.C CHC [zone name]
Personnel,” respectively. If submitting for multiple zones,
Applicants must include separate SDB and VBE
Submittals for each zone in its application. The Applicant
must indicate the zone(s) for which they are applying for
on the Application Cover Sheet (Appendix A). To be
considered, the application should respond to all
application requirements. Applicants should provide any
other information thought to be relevant, but not
applicable to the enumerated categories, as an appendix to
the application. All SDB and VBE cost data should be kept
separate from and not included in the Technical Submittal.
....
Id. at 50. The RFA provided a map and detailed description of the zones:

A. The Southwest zone (“SW”) includes Allegheny,
Armstrong, Beaver, Bedford, Blair, Butler, Cambria,
Fayette, Greene, Indiana, Lawrence, Somerset,
Washington and Westmoreland Counties.

B. The Southeast zone (“SE”) includes Bucks, Chester,
Delaware, Montgomery and Philadelphia Counties.
C. The Lehigh/Capital zone (“L/C”) includes Adams,
Berks, Cumberland, Dauphin, Franklin, Fulton,
Huntingdon, Lancaster, Lebanon, Lehigh, Northampton,
Perry and York Counties.

14
D. The Northwest zone (“NW”) includes Cameron,
Clarion, Clearfield, Crawford, Elk, Erie, Forest, Jefferson,
McKean, Mercer, Potter, Venango and Warren Counties.

E. The Northeast zone (“NE”) includes Bradford, Carbon,
Centre, Clinton, Columbia, Juniata, Lackawanna,
Luzerne, Lycoming, Mifflin, Monroe, Montour,
Northumberland, Pike, Schuylkill, Snyder, Sullivan,
Susquehanna, Tioga, Union, Wayne and Wyoming
Counties.
Id. at 43a-44a. The RFA included a chart showing historical information on eligible
populations included in the CHC Program in each of the zones. Id. at 44a.
In turn, DHS was required to “evaluate all applications separately, and
. . . award [multiple] Agreements . . . to no fewer than three and no more than five
CHC-MCOs in each of the five CHC zones.” R.R. at 46a. “In determining the
number of CHC-MCOs to be awarded in each zone, [DHS] will consider the
population of a zone, [DHS]’s experience with the CHC Program, and the ability of
a zone to support multiple CHC-MCOs.” Id. To take into account the CHC’s five
separate geographic zones, the RFA stated: “The evaluation committee will evaluate
Technical Submittals for each zone separately.” Id. at 58a (emphasis added). “For
the zone(s) that an Applicant includes in its application,” DHS’s evaluation will
consider:

o Whether the Applicant has fully and appropriately
accounted for the particular or specific resources
available to and challenges face[d] by the populations
in the zone;

---

o Whether the Applicant’s approach has been
specifically crafted to address the particular and
unique demographic, cultural, economic, geographic,
or other relevant characteristics of the regions,
counties, and municipalities comprising the zone(s).

15

---

o Corporate background and history, including the
quality, relevancy, and recency of prior work by both
the company and the specific individual employees
who will be assigned to the zone, as well as the
company’s history of promoting diversity and
inclusion;

---

o The sufficiency, quality, and feasibility of the CHC-
MCO’s overall organizational structure and its
proposed organizational structure, functions, staff, and
subcontractors (if used) for the operation in the zone;
and

o The education, experience, qualifications, and other
information as required in Part III for Executive
Management, Key Administrative, and subcontracted
staff to support operations in each zone.
R.R. at 59a (emphasis added).
The RFA provided that the “Issuing Office will combine the evaluation
committee’s final technical scores, in accordance with the relative weights
assigned[.]” R.R. at 60a. The final technical scores would be determined “by giving
the maximum number of technical points available to the application with the highest
raw technical score and the remaining applications rated by applying” the following
formula:

Raw Technical Score of Proposal Being Scored x A = Final Technical Score
Highest Raw Technical Score

Id. at 59a-60a; RFP Scoring Formula.8 The Issuing Office would then “rank
responsible Applicants by zone according to their total overall score assigned to

8
The RFP Scoring Formula is available online at:
https://www.pa.gov/agencies/dgs/procurement-resources/rfp-scoring-formula (last visited April 1,
2026).
16
each, in descending order[,] and select for negotiations for each zone the Applicants
with the highest overall score.” Id. at 60a-61a.
Highmark applied for all five zones, as did the seven other MCOs.
Despite the RFA’s specifications that required applicants to provide zone-specific
submittals and information and the evaluation committee to evaluate the submittals
for each zone separately, each applicant received the exact same numerical
technical score, down to the second decimal point, across all five zones. R.R. at
311a. This outcome is statistically implausible considering the unique composition
of each zone. For example, the SE zone, which includes Philadelphia, has more than
double the eligible population as the NW zone. See id. at 44a. If an applicant
submitted the same or similar technical information for each zone, the scoring should
have varied to reflect the zone-specific criteria. Conversely, if the applications were
tailored to each zone (describing “different, separate, or additional components
specifically designed to address the RFA requirements in one particular zone,” R.R.
at 50a), it is even more unlikely that the scores would be identical across all five
zones. There was no scoring variation among the seven applicants across the five
zones.
This scoring anomaly is further highlighted by comparison to the 2019
RFA, in which DHS invited applicants to submit proposals in one or more zones
under a nearly identical evaluation framework. See R.R. at 896a-951a. Highmark
presented evidence showing that its predecessor received varying scores across
zones in the 2019 CHC procurement, which supports the expectation that zone-
specific evaluations should yield variations in results. See R.R. at 507a, 514a, 521a.
Remarkably, DHS has not articulated any explanation for the
uniformity in scoring. Relying entirely on the McCoy Declarations, DHS sidesteps

17
the issue and maintains that each zone was evaluated independently and that the
evaluation workbooks and instructions were structured accordingly. According to
the McCoy Declaration, “[t]he Evaluation Workbook contained specific scoring
sections for each individual zone and did not contain a section for scoring on a
statewide level.” R.R. at 298a. “[DHS] separately reviewed and evaluated each
applicant’s application for each CHC zone.” Id.; see id. at 28a; First Determination,
at 7, ¶24. Further,

[a]t the conclusion of the group scoring meeting, each
evaluator provided me with his or her completed
evaluation workbook. Every member of the evaluation
committee provided an individual score by zone for each
established evaluation criterion. There were no members
of the Evaluation Committee that submitted a single score
applicable to all zones. The individual scores for each
evaluation criterion within each zone were tallied to arrive
at the overall score for each zone.
R.R. at 298a.
The McCoy Declarations offer only conclusory assertions that each
zone was evaluated separately but are devoid of any explanation for how the
applications were scored by zone and why the scores produced were identical across
all five zones for all seven applicants. In addition to the McCoy Declarations, DHS
produced the August 21, 2024 non-selection letter, which merely showed the
selection results, and the Recommendation Memo, which showed final scores and
no other evaluation data. See R.R. at 20a-21a, 308a-315a. None of these documents
provide a rational connection between the identical scores and zone-by-zone
evaluation mandate. While the actual scoring workbooks or evaluator instructions
may have shed light on the anomaly, these documents were never offered by DHS.

18
Designee accepted the statements in the McCoy Declarations that the
evaluations were conducted on a zone-by-zone basis. She chose not to “request and
review such additional documents or information,” 62 Pa. C.S. §1711.1(e), that
would have corroborated these statements or otherwise explained the anomaly.
Designee summarily rejected the anomaly explaining that “no documents, including
the RFA, state that an evaluation of applications by individual zones could not result
in applicants receiving the same evaluation score for different zones.” First
Determination at 19. While true, this explanation offers no rationale for why the
anomaly occurred if the applications were separately evaluated by zones as declared.
Perhaps the zones were graded on a pass/fail basis with no points assigned? Or
perhaps the evaluation committee weighted compliance over qualitative differences?
Whatever the reason may be, DHS has not articulated one. As a reviewing court,
“[w]e may not supply a reasoned basis for the agency’s action that the agency itself
has not given.” Motor Vehicle, 463 U.S. at 43.
Ultimately, Designee relied on the presumption of agency good faith in
denying Highmark’s bid protests. Although DHS is entitled to a presumption of
good faith, this presumption is rebuttable. Highmark’s evidence of the scoring
uniformity contrasted with varied scoring in a similar RFA was sufficient to
overcome the presumption. See Commonwealth v. DiFrancesco, 329 A.2d 204, 208
(Pa. 1974) (quoting Tot v. United States, 319 U.S. 463, 467-68 (1943)) (holding a
“presumption cannot be sustained if there be no rational connection between the fact
proved and the ultimate fact presumed . . . .”); see, e.g., Caddell Construction Co.,
Inc. v. United States, 111 Fed.Cl. 49, 91 (Fed. Cl. 2013) (agency’s unexplained
reversal of a prequalification decision without supporting documentation caused the

19
court to reject the presumption of good faith and demand proof).9 This evidence
calls into question the integrity of the competitive bidding process, highlights a lack
of transparency, and supports an inference of irregularity or noncompliance with the
RFA’s mandatory requirements.
In response, DHS offered only conclusory declarations and failed to
offer a reason or produce the evaluation workbooks or other documentation that
could rationally explain this anomaly. By accepting DHS’s position without
requiring corroborating evidence or explanation, Designee abdicated her oversight
responsibility, abused her discretion, and hindered this Court’s review.
In sum, the Procurement Code does not shield agencies from judicial
review where there has been an abuse of discretion or an arbitrary execution of
duties. See Reading Blue Mountain, 235 A.3d at 458-59. Agencies must provide a
rational basis for their decisions, and unexplained anomalies, particularly those that
defy statistical plausibility, constitute arbitrary and capricious action. See American
Totalisator, 414 A.2d at 1041 (finding judicial intervention warranted where the
Commonwealth failed to follow its own solicitation terms, undermining the benefits
of competitive bidding); see also Cary, 153 A.3d at 1210 (holding that an agency’s
failure to articulate a rational connection between facts and its decision rendered the
action arbitrary and capricious). The identical scoring across all five zones supports
Highmark’s claim that DHS failed to conduct zone-specific evaluations as required
by the RFA. Absent any rational basis for the scoring uniformity, we are constrained
to conclude that DHS’s award selection was arbitrary, capricious, and contrary to
law.

9
Although we are not bound by decisions of lower federal courts, such decisions may be
given persuasive effect. In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012).
20
IV. Conclusion
Accordingly, we reverse the Designee’s Determinations denying
Highmark’s consolidated bid protests and cancel the award of the RFA.10 See
Section 1711.1(j) of the Procurement Code, 62 Pa. C.S. §1711.1(j).11

MICHAEL H. WOJCIK, Judge

President Judge Cohn Jubelirer did not participate in the decision of this case.
Judge Fizzano Cannon did not participate in the decision of this case.

10
In light of this determination, we do not address the remaining issues.

11
Section 1711.1(j) of the Procurement Code states:

Remedy. -- if the determination is not affirmed, the court may enter
any order authorized by 42 Pa. C.S. §706 (relating to disposition of
appeals), provided that, if the court determines that the solicitation
or award of a contract is contrary to law, then the remedy the court
shall order is limited to canceling the solicitation or award and
declaring void any resulting contract.

62 Pa. C.S. §1711.1(j).
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gateway Health Plan, Inc. : CONSOLIDATED CASES
d/b/a Highmark Wholecare, :
:
Petitioner :
:
v. : No. 147 C.D. 2025
: No. 526 C.D. 2025
Department of Human Services, :
:
Respondent :

ORDER

AND NOW, this 2nd day of April, 2026, the two final determinations of
the Designee for the Secretary of the Pennsylvania Department of Human Services,
dated January 21, 2025, and April 14, 2025, denying Petitioner’s bid protests are
REVERSED, and the award of the Request for Application No. 31-22 is
CANCELLED.

---

MICHAEL H. WOJCIK, Judge