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EXHIBIT F
Case: 25CH1:17-cv-000966
25CH1:17-cv-000916 Document #: 19-6
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EXHIBIT C
Case: 25CH1:17-cv-000966
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EXHIBIT C
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EXHIBIT C
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INTRODUCTION
1
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The Court should deny the Motions and let the Division complete the
administrative process.
FACTS AND PROCEDURAL HISTORY
1 Doc. 5.
2 Id. at p. 1.
3 Doc. 19.
4 Doc. 20.
5 Magnolia, United, and Molina intervened as well.
6 Amerigroup Motion at p. 11.
2
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Amerigroup set its Motion to be heard on August 14. Mississippi True joined
Amerigroups Motion on August 9.7 On August 10, Mississippi True noticed its own
Motion for hearing and then issued a subpoena for Dr. David Dzielak, the Divisions
Executive Director.8 On its own initiative, the Court quashed the subpoena the same
day.9
The Division has not yet issued a final agency decision on Amerigroups or
Mississippi Trues award protests. The Division will not issue its decision until after
Amerigroup and Mississippi True submit their amended bid protests, which are due by
the close of business on August 18, 2017. If it denies the protests, the Division intends to
submit the contracts and its decision to the PSCRB for consideration at the PSCRBs
September 19, 2017 meeting.
If the PSCRB approves the contracts, or declines to consider the contracts, the
Division will then submit them to CMS for review and approval. The contracts have
been signed by the partiesbecause CMS requires the parties signatures prior to its
reviewbut the contracts are not valid and enforceable until the Division issues its final
agency decision and the contracts have been approved by CMS.10
ARGUMENT
The Court should deny the Motions because it lacks jurisdiction to grant the
requested relief. Even if it had jurisdiction, it should summarily deny the Motions
anyway because Amerigroups Motion effectively seeks a permanent injunction without
discovery or a trial and there is no threat of irreparable harm.
7 Doc. 27.
8 Doc. 28 and Doc. 30. The Division expects that Mississippi True will attempt to use
some of the public records that the Division produced on August 9. The Division objects
to Mississippi True using these documents without first supplementing its Motion to
make any new arguments and allowing the Division an opportunity to respond.
9 Doc. 34. In its order, the Court also instructed the parties not to file anything else
without permission. The Division therefore intends to request permission to file this
Response, and will request permission and an extension of time to respond to the
Complaints filed by Amerigroup and Mississippi True if necessary.
10 RFP at 3.5, 3.6.
3
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I. The Court does not have jurisdiction over either Protesters claims.
The threshold issue here is whether the Court has jurisdiction.11 It does not. The
Motions are, paradoxically, both moot and not yet ripe. Plaintiffs have not exhausted
their administrative remedies, so their claims on the merits are premature, and their
claims about the protest process are moot.
4
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15 Mississippi Gaming Comn v. Tupelo Industries, Inc., 747 So. 2d 287 (Miss. 1999).
16 Id. at 289.
17 Id.
18 Id.
19 Id. at 289-290 (We conclude the chancery court of Hinds County erred in granting
5
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before filing suit.21 The Court should find that it does not have jurisdiction to grant this
relief on the merits and should deny the Motion to the extent it seeks such relief.
21 E.g., CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 189 So. 3d 726, 730 (Miss. 2016);
Urban Developers, LLC v. City of Jackson, 468 F. 3d 281, 294 (5th Cir. 2006); In re Wilborn,
590 So. 2d 1381, 1386 (Miss. 1991); Everitt v. Lovitt, 192 So. 2d 422, 427-428 (Miss. 1966).
22 Falls v. Jefferson Davis Co. Public School Bd., 95 So. 3d 1223, 1225 (Miss. 2012) (quoting
6
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Neither is there any real dispute about implementing the contracts and
submitting them to CMS. Even though the contracts are signed, they are not valid and
enforceable until approved by CMS.28 And the Division will not submit the contracts to
CMS for review and approval until after the Division issues a final decision on the
protests and after the PSCRB considers the contracts.
If Amerigroup and Mississippi True lose their protests and the PSCRB approves
the contracts, then they may appeal the final agency decision to this Court. In the
interim, there is no real dispute about how the process will work. The Court should
deny the Motions for lack of jurisdiction over the procedural claims as well.
II. Even if the Court had jurisdiction, it should still deny the Motions.
The Court should deny the Motion even if it had jurisdiction because (a)
Plaintiffs are improperly trying to obtain ultimate relief sought in the Complaints
through a preliminary injunction; and (b) there is no evidence whatsoever of threatened
irreparable harm.
A. Plaintiffs are not entitled to rescind the award and obtain a new
procurement with new representatives as a preliminary injunction.
Plaintiffs seek to require the Division to rescind the award and issue and new
procurement with new representatives. This is the ultimate relief that they seek in the
Complaints. That is, it is the relief they seek to obtain after a trial on the merits.
The law does not permit them to seek this ultimate relief in the form of a
preliminary injunction, particularly when there has been no discovery and less than two
weeks notice of the hearing. Mississippi law is clear that, if the injunction will have
the effect of granting to the complainant all the relief that the complainant could obtain
on a final hearing, then it should be denied except in the rarest of cases.29 If the Court
determines it has jurisdiction, it should summarily deny the Motion as seeking ultimate
relief only obtainable after a trial on the merits.
7
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The Court should deny the Motions for lack of jurisdiction. Amerigroup and
Mississippi True have not exhausted their administrative remedies because the Division
has not issued a final decision on their protests. They could still be awarded the
contracts. Moreover, their claims related to the protest process are moot. There is no
actual dispute as to the time they will have to submit a revised appeal or whether the
contracts are currently valid and enforceable.
Finally, even if the Court had jurisdiction, it should still deny the Motions.
Plaintiffs are trying to obtain their ultimate relief without any discovery or a trial on the
merits and without any evidence of irreparable harm.
The Court should deny the Motions and award any other relief it deems
appropriate.
30 Id.
8
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/s/Kathryn R. Gilchrist
Kathryn R. Gilchrist (MSB #8946)
Everett White (MSB #101875)
GILCHRIST DONNELL PLLC
599B Steed Road
Ridgeland, MS 39157
(601) 790-2880 - Telephone
(601) 790-2900 - Fax
kgilchrist@gilchristdonnell.com
ewhite@gilchristdonnell.com
9
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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2017 I electronically filed the foregoing with the
Clerk of the Court using the MEC system, which sent the notification to all counsel of
record.
/s/Kathryn R. Gilchrist
Kathryn R. Gilchrist
10
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RESPONSE TO
(A) MISSISSIPPI TRUES MOTION FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION (DKT. # 5), AND (B) AMERIGROUP
MISSISSIPPI, INC.S MOTION FOR PRELIMINARY INJUNCTION AND
EXPEDITED HEARING (DKT. # 20)
Molina Healthcare, Inc. and Molina Healthcare of Mississippi, Inc. (together, Molina)
le this response to (a) Mississippi Trues Motion for Temporary Restraining Order and/or
Preliminary Injunction (Dkt. # 5), and (b) Amerigroup Mississippi, Inc.s Motion for Preliminary
1. Mississippi True and Amerigroups Motions are improper and untimely, as both
before seeking corrective action from a court. Jeffrey J. Jackson et al., Encyclopedia of
Mississippi Law, Vol. 1 2:84 (2d ed. 2015). See also Davis v. Barr, 157 So. 2d 505, 508 (Miss.
entitled to judicial relief until the agency itself has been given its statutory and rules-based
opportunity to complete its review of the matter. Jackson, supra at 2:84. This principal is
stated in quite absolute terms: a complainant must exhaust the administrative remedies available
to him before resorting to the courts for resolution of his dispute. Id. (citing State v. Beebe, 687
3. In disregard of that principal, Mississippi True and Amerigroup are litigating this
dispute on two simultaneous frontsboth administratively before the Division and the
Mississippi Personal Services Contract Review Board and judicially before this Court. And in
each venue, Mississippi True and Amerigroup are asserting the same claims and seeking the same
relief: Both parties are asking this Court, the Division, and the PSCRB to, among other things,
rescind the award of the MississippiCAN contract to the successful offerors and issue a new
4. But as Mississippi True and Amerigroup are well aware, their protests are still
pending before the Division, and their protests and the award of the MississippiCAN contract
will thereafter be presented to the PSCRB for consideration. (E.g. Scheduling Order, Dkt. # 22 in
17-cv-000916 (setting for schedule for review by Division and PSCRB).) And until the Division
and the PSCRB have issued a nal decision, any request for judicial relief by a court of law is
prohibited.
5. Mississippi True and Amerigroups litigation strategy also violates the principal of
primary jurisdiction, which provides that, once a party has invoked administrative remedies, that
Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1221 (Miss. 2010) (citing Ill. Cent. R. Co. v.
2
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6. Simply enough, Mississippi True and Amerigroup are playing by their own set of
procedural rules, which rules violate clearly established law. In doing so, Mississippi True and
Amerigroup are wasting this Courts time and resources by asking this Court for relief that this
Court cannot grant. Worse, these litigation tactics are delaying the continued implementation of
the Mississippi Coordinated Access Network, which delay will harm millions of Mississippi
For these reasons, Molina requests that this Court deny the Motions. Molina hereby
reserves the right to more fully answer and respond to the Complaints (Dkt. #s 2 and 19) led by
Mississippi True and Amerigroup, as well as the Motions, until after the Court rst determines
its jurisdiction in this matter under the doctrines of exhaustion of administrative remedies and
primary jurisdiction.
3
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CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically led the foregoing with the Clerk of the
Court using the MEC system, which sent notication of such ling to all counsel of record,
including the following:
4
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MOTION TO INTERVENE
under M.R.C.P. 24, requesting that this Court allow UHC to intervene as a party to oppose the relief
requested in Mississippi Trues (MT) Complaint for Temporary Restraining Order, Preliminary
and Permanent Injunction, Declaratory Judgement and other Relief (the Complaint, Dkt #2) and
Motion for Temporary Restraining Order and/or Preliminary Injunction (the Motion for Injunctive
1. After the Mississippi Division of Medicaid awarded its Mississippi CAN contract to
other vendors, MT and Amerigroup Mississippi, Inc. (Amerigroup) both filed protests accusing
2. Those protests - which are entirely meritless - are still pending before the Division
and UHC has filed responses to each protest with the Division.
and Motion for Injunctive Relief in this Court, prematurely asking the Court to, among other things,
enjoin the Division from performing under the contract and declaring the award of the contract void.
AmeriGroup, like MT has filed a protest, and has moved to intervene in this action to seek the same
-1-
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relief requested by MT. Neither MT nor AmeriGroup can show that required irreparable harm could
4. Like the protests themselves, MTs Complaint and Motion for Injunctive Relief - as
5. To protect its rights and interests in the contract award to it, UHC requests that this
Court allow UHC to intervene in this proceeding to oppose the relief sought by UHC and
Amerigroup.
6. M.R.C.P. 24(a) provides for intervention as of right. Under that Rule, anyone shall
be permitted to intervene where that person claims an interest relating to the property or
transaction which is the subject of the action and he is so situated that the disposition of the action
may as a practical matter impair or impede his ability to protect that interest, unless the applicants
7. UHCs rights and interests in the performance of the MississippiCAN contract are
the very subject of this action. And MT - as well as Amerigroup - are asking the Court to enjoin
performance of that contract and, ultimately to declare the award of that contract void. The
disposition of the MT Complaint and Motion for Injunctive Relief will impair and impede UHCs
ability to protect its rights and interests in the contract. Indeed, disposition of this action in favor of
MT and Amerigroup will eviscerate UHCs rights and interests in the contract.
8. UHCs interests are not adequately protected by any other party to this proceeding.
In their protests, both MT and AmeriGroup have asserted that UHC made inaccurate representations
and that UHC was given more points than appropriate in the evaluation of the proposals. UHC is
in the best position to rebut these allegations on UHCs behalf. MT and AmeriGroup are challenging
-2-
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the awarding of a contract to UHC, and UHC should be allowed to respond by intervention.
9. If UHC is not allowed to intervene as of right, this Court should - alternatively - allow
UHC to intervene under M.R.C.P. 24(b), which provides for permissive intervention. Under that
Rule, anyone may be permitted to intervene where the persons claim or defense and the main
10. Both this action, and the administrative proceeding for the protests of MT and
Amerigroup, share the same questions of law and fact (i.e. whether the Division properly award the
contract). In addition, UHCs claims and defenses in the administrative proceeding involve the same
questions of law and fact as this action. Accordingly, UHC is - at the very least - entitled to
11. UHCs proposed response to Motion for Injunctive Relief is attached hereto as
Exhibit A in accordance with M.R.C.P. 24(c). UHCs answer to the Complaint will be filed in a
FOR THESE REASONS, UHC requests that this Court grant this Motion and allow UHC
to intervene in this case and oppose the relief sought in the Complaint and Motion for Injunctive
Relief.
Respectfully submitted
-3-
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OF COUNSEL:
CERTIFICATE OF SERVICE
I, Timothy J. Sterling, do hereby certify that I have this day filed the above and foregoing
Motion through the Courts ECF Filing System thereby serving a copy of said Motion upon all
parties of record.
-4-
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Plaintiff Mississippi True, pursuant to Miss. R. Civ. P. 65(b), moves this Court for a
temporary restraining order and/or preliminary injunction against Defendants David J. Dzielak,
Ph.D., in his official capacity as Executive Director of the Division of Medicaid, Office of the
Governor (Dzielak), and the Division of Medicaid, Office of the Governor, State of
(a) provide Mississippi True a reasonable amount of time as determined by the Court,
but in no event less than seven (7) working days after the production of the
competitive sealed proposals that have been requested by Mississippi True, in
which to supplement and complete its Protest of the intended award of contracts
pursuant to RFP #20170203 (the MississippiCAN contracts), as required by
Miss. Code Ann. 25-61-5;
(b) submit the MississippiCAN contracts to and obtain approval from the Mississippi
Personal Service Contract Review Board (PSCRB), as required by Miss. Code
Ann. 25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and
(c) not execute or implement the MississippiCAN contracts until Defendants have
fully complied with (a) and (b) above and Mississippi True has been allowed to
pursue all necessary judicial appeal rights as provided in MS ADC 27-1:5-
201(a).
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In support of this motion, Mississippi True shows to the Court the following:
On February 3, 2017, DOM issued RFP #20170203 seeking proposals from managed
care or coordinated care companies to serve as contractors for the MississippiCAN program.
Compl., Ex. A. 1 The MississippiCAN program is DOMs managed care program for Medicaid
beneficiaries and expends over $3 billion annually in state and federal funds. This money is paid
to the MississippiCAN contractors as a premium calculated on a per member per month basis.
On information and belief, RFP#20170203 represents the largest service contract procurement by
any Mississippi governmental agency. On or about April 7, 2017, Mississippi True timely
submitted a proposal in response to RFP #20170203 that complied in all particulars with the RFP
including the required $500,000.00 bond. By letter from Defendant Dzielak, dated June 15,
2017, Mississippi True was advised that its Proposal had been rejected and that a contract would
be awarded to three offerors other than Mississippi True, namely United, Magnolia Health, and
RFP #20170203 gives unsuccessful offerors the express right to protest a notice of non-
award within ten days of receipt of the notice. A protest must be accompanied by a $500,000
protest bond and state the specific grounds for the protest. Compl., Ex., A, at 34. Acceptable
Id., at 36. Section 25-61-5 of the Mississippi Public Records Act gives unsuccessful offerors
1
All except those referenced as Motion Ex. _____ are attached to the Complaint.
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who submit a public records request for the competitive sealed proposals a reasonable amount
of time, but in no event less than seven (7) working days after the production of the competitive
sealed proposals, to protest the procurement or intended award prior to contract execution.
Miss. Code Ann. 25-61-5(b). Mississippi True submitted a public records request to DOM for
the competitive sealed bids on June 26, 2017, and has not received the requested proposals from
timely filed its Protest of RFP #20170203. Compl., Ex. C. Mississippi True simultaneously
In its Protest, Mississippi True presented evidence that Mississippi Trues scores were the
product of bias and discrimination against Mississippi True because of its status as a PSHP,
coupled with errors in computing its score, both of which contributed to selection of contractors
that did not submit the best proposals. Mississippi Trues Protest includes evidence of specific
scores that were reduced based solely on its status as a PSHP. The difference in Mississippi
Trues score and the score of the lowest successful offeror was only 4.55 points. Mississippi
True established that had its score been free from scoring bias and discrimination, its score
would have increased by greater than 4.55 points and it would have been awarded one of the
contracts. The evidence presented in the Protest shows that the contract award decisions were
arbitrary, capricious, not supported by substantial evidence, and contrary to the clear letter and
intent of the Mississippi Legislature expressed in the PSHP statute. Mississippi True, therefore,
asserted that its score should be increased and it should be awarded one of the MississippiCAN
contracts. Alternatively, it requested that none of the contracts be awarded and that the contracts
be re-procured. The Protest expressly advised DOM that Mississippi True intends to supplement
its Protest after DOM produces the documents responsive to Mississippi Trues public records
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On July 7, 2017, without making any determination on Mississippi Trues Protest and
prior to producing the sealed competitive bids or any other requested public records, DOM
through its staff attorney, Paige Biglane, Esq., emailed Mississippi Trues attorney informing
Mississippi True that DOM (a) will not submit the contracts to the PSCRB for approval, (b) will
not afford Mississippi True any appeal rights, and (c) will move forward with contract
execution unless ordered to do otherwise by a court. Compl., Ex. D. This email clearly shows
that DOM has no intent to comply with state law or its own procedures and deprives Mississippi
Mississippi True will be deprived of its statutory and regulatory right to pursue its protest
through the PSCRB and appeal to this Court, if necessary. Defendants actions thus threaten to
severely and irreparably harm Mississippi True. In further support of this Motion, Mississippi
LEGAL ARGUMENT
Under Mississippi law, a party may obtain a temporary restraining order or preliminary
(1) [whether] there exists a substantial likelihood that [the] plaintiff will
prevail on the merits; (2) [whether] the injunction is necessary to prevent
irreparable harm; (3) [whether] the threatened harm to the applicant
outweighs the harm the injunction might do to the respondents; and (4)
[whether] entry of the injunction is consistent with the public interest.
Sec'y of State v. Gunn, 75 So.3d 1015, 1020 ( 14) (Miss.2011) (citation and internal quotation
marks omitted); Lauderdale v. DeSoto Co. ex rel. Bd. Of Supervisors, 196 So. 3d 1091, 1099
(Miss. 2016). The movant has the burden of establish these factors by a preponderance of the
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preliminary injunction even though a plaintiff's right to relief on the merits remains uncertain.
Id., citing, Gunn, 75 So.3d at 1021 ( 17). Mississippi True has more than adequately met this
standard.
Mississippi True is substantially likely to succeed on the merits of its claims. First, the
law is crystal clear that an unsuccessful offeror that requests the competitive sealed bids is
entitled to at least seven days after receipt thereof in which to file its protest. Section 25-61-5 of
Persons making a request for production of competitive sealed proposals after the notice
of intent to award is issued by the public body shall have a reasonable amount of time,
but in no event less than seven (7) working days after the production of the competitive
sealed proposals, to protest the procurement or intended award prior to contract
execution.
Miss. Code Ann. 25-61-5(1)(b). Mississippi True has requested but not yet received the
competitive sealed proposals. This request is the subject of a separate action filed by one of the
successful bidders seeking to protect the contents of its proposal. See In Re: UnitedHealthcare
cause no. G-2017-916 S/2, in the Chancery Court of Hinds County, Mississippi, First Judicial
District. Until that matter is resolved and Mississippi True is afforded a reasonable time not less
than seven days after receipt of the competitive sealed proposals, Mississippi Trues time for
DOM thus cannot lawfully decide Mississippi Trues protest until Mississippi True is
afforded a reasonable opportunity to receive and review the competitive sealed proposals and to
supplement its protest. The sealed competitive proposals and other public records requested by
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Mississippi True are absolutely necessary to perfect its protest. Paige Biglanes July 7 email
shows that Defendants intend to violate (or have already violated) their obligations under 25-
Second, pursuant to Miss. Code Ann. 25-9-120, subject to certain limited and
inapplicable exceptions, the PSCRB has the authority and responsibility to [a]pprove all
personal and professional services contracts involving the expenditures of funds in excess of
required to submit the proposed contracts to the PSCRB for its approval. Its refusal to do so is a
appropriate provisions of the Personal Service Contract Review Board Rules and Regulations
which are available for inspection at 210 East Capitol Street, Suite 800, Jackson, Mississippi or
downloadable at www.mspb.ms.gov. These PSCRB regulations also provide that the PSCRB
has the power and responsibility to [a]pprove all personal and professional services contracts
PSCRB Rules & Regs, Rule 2-103, at p. 11. DOM is specifically listed as a state agency under
the purview of the PSCRB. PSCRB Rules & Regs., App. A, at p. 131. Thus, DOM is required
by its own RFP and the PSCRB regulations incorporated by the RFP to submit the proposed
contracts to the PSCRB for its approval prior to execution of those contracts. Failure to do so is
a clear violation of the terms and provisions of the RFP as well as PSCRB regulations
DOMs position (stated in Ms. Biglanes email) that PSCRB approval is not required
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because the MississippiCAN contracts are insurance contracts is also contrary to Mississippi
The determination of the method of providing payment of claims under this article
shall be made by the division, with approval of the Governor, which methods may
be:
The division shall obtain services to be provided under either of the above-
described provisions in accordance with the Personal Service Contract Review
Board Procurement Regulations.
The authorization of the foregoing methods shall not preclude other methods of
providing payment of claims through direct operation of the program by the state
or its agencies.
(Emphasis added). Without conceding that this statute applies to the MississippiCAN contracts
at all, it unambiguously requires both approval by the Governor and compliance with PSCRB
regulations. The Governor has not approved the contract awards, and the PSCRB regulations as
explained above require approval by the PSCRB. Thus, Defendants have failed to satisfy the
Third, PSCRB regulations give an unsuccessful bidder the right to appeal an adverse
decision by the PSCRB to an appropriate court. Miss. Admin. Code 27-1:5-201(a). Thus, if the
Mississippi True receives an adverse decision from the PSCRB, it is entitled to appeal that
decision to court. Defendants decision to disregard the required protest and PSCRB approval
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and move straight to contract execution deprives Mississippi True of this right. This is a clear
2. Irreparable Harm
Mississippi True is prepared to prove that it was denied one of the Mississippi True
contract based solely on objectively erroneous scoring coupled with Defendants bias and
discrimination against Mississippi True as a PSHP. Defendants have shown overt bias against
Medicaid providers and favoritism toward out of state for-profit companies in disregard of the
Legislatures intent that a PSHP serve as one of the MississippiCAN contracts. This intent was
expressed clearly by the Legislature when it declared that the authorization and development of
provider-sponsored health plans as defined in Section 83-5-603 are vital to the continued
delivery and improvement of health care in this state and otherwise in the best interests of the
state and its citizens, Miss. Code Ann. 83-5-601 (emphasis added), and that [a]t least one (1)
purpose of the provider-sponsored health plan shall be to contract with the Division of Medicaid
to provide managed care services on a capitated basis pursuant to Section 43-13-117(H). Id.,
However, because Defendants have ignored the required protest and appeal procedure,
Mississippi True has been deprived of any opportunity to prove its case. 2 Thus, Defendants
actions irreparably deprive Mississippi True of its right to protest after receipt of the requested
competitive sealed bids, the right to challenge the non-award before the PSCRB, and the right to
judicially appeal the PSCRB decision if it remains adverse to Mississippi True. This Court must
enter the requested TRO and preliminary injunction in order to prevent this unlawful conduct and
2
Mississippi True is not asking the Court at this time to determine the ultimate issue of whether
Mississippi True should be granted one of the MississippiCAN contracts. That issue should be decided
later after the proper procedures are followed. At this time, Mississippi True asks only that the Court
enjoin Defendants to follow the established statutory and regulatory procedures for resolving a protest of
a state agency contract award.
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The threatened injury to Plaintiff far outweighs any potential injury to the Defendants.
Mississippi True will be clearly and severely injured because it will be denied a MississippiCAN
contract without any right to protest and otherwise challenge the contract awards, contrary to the
clear intent of the Mississippi Legislature expressed in Sections 83-5-601, et seq. The rights
provided to Mississippi True to protest the award and to appeal any adverse decision by the
Conversely, granting the requested injunctive relief will cause no injury to Defendants as
they will merely have to follow the proper procedures and applicable law for processing
Mississippi Trues Protest and approving the contract. 3 (Indeed, one wonders why the
Defendants are so anxious to avoid having their decision reviewed by another agency or a court.)
Even if this results in a minor delay in implementation of the contracts, any such delay will cause
Defendants no harm because Medicaid services will continue to be provided under the current
MississippiCAN contracts.
Mississippi True does not have an adequate remedy at law. If the preliminary injunction
afforded and exercises its administrative and judicial appeal rights. The bell cannot be un-rung.
Mississippi True will have no breach of contract claim because it has not been awarded one of
the contracts. Also, as recognized by the Mississippi Supreme Court, under normal
3
Granting this motion will actually protect Defendants from potential harm because they may be held
personally liable under Miss. Code Ann. 31-7-57 if they authorize an award of a contract in violation of
law. See 27 Miss. Admin. Code 1:3-101.03.
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circumstances, an unsuccessful bidder should seek a court order requiring a public agency to
follow the established RFP procedures before seeking compensatory damages. See, e.g., City of
Durant v. Laws Constr. Co., Inc., 721 So. 2d 598, at 28 (Miss. 1998).
Granting the requested injunctive relief serves the public interest by, among other things,
enforcing the policies stated in Mississippi Code Section 25-9-120, Section 25-61-5(1)(b), as
well as Sections 83-5-603, -605, -607, Section 25-9-120, Section 25-61-5(1)(b), and other
applicable statutes and regulations discussed herein. Further, granting the requested injunction
ensures that Defendants fulfill their obligations to administer the Mississippi Medicaid program
as required by state law. The public interest is never served by condoning the violation of valid
statutes and regulations by state agencies and the officials appointed to run them.
6. Bond Posted
Mississippi True has already posted a $500,000 bond with DOM as a condition to filing
its Protest. Motion Ex. A. This bond more than adequately satisfies the requirement of security
under Miss. R. Civ. P. 65(c). Mississippi True requests the Court to relieve Mississippi True of
7. Notice to Defendants
Mississippi True hereby gives notice by service upon the Honorable Jim Hood, Attorney
General, and Paige Biglane, Esq., Special Assistant Attorney General assigned to DOM, that it
will bring this motion for hearing as soon as counsel may be hear.
CONCLUSION
For the reasons state above and in the complaint, Mississippi True respectfully requests
that this Court enter a temporary restraining order and preliminary injunction ordering and
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(a) provide Mississippi True a reasonable amount of time as determined by the Court,
but in no event less than seven (7) working days after the production of the
competitive sealed proposals that have been requested by Mississippi True, in
which to supplement and complete its Protest of the intended award of contracts
pursuant to RFP #20170203 (the MississippiCAN contracts), as required by
Miss. Code Ann. 25-61-5;
(b) submit the MississippiCAN contracts to and obtain approval from the Mississippi
Personal Service Contract Review Board (PSCRB), as required by Miss. Code
Ann. 25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and
(c) not execute or implement the MississippiCAN contracts until Defendants have
fully complied with (a) and (b) above and Mississippi True has been allowed to
pursue all necessary judicial appeal rights as provided in MS ADC 27-1:5-
201(a).
Respectfully submitted,
OF COUNSEL:
WISE CARTER CHILD & CARAWAY, P.A.
401 East Capitol Street, Suite 600
Jackson, Mississippi 39201
Post Office Box 651
Jackson, Mississippi 39205
(P): 601-968-5500
(F): 601-944-7738
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CERTIFICATE OF SERVICE
I, GEORGE H. RITTER, do hereby certify that I have this day caused to be served via
hand-delivery and the MEC a true and correct copy of the above and foregoing document to:
INTRODUCTION
1
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The Court should deny the Motions and let the Division complete the
administrative process.
FACTS AND PROCEDURAL HISTORY
1 Doc. 5.
2 Id. at p. 1.
3 Doc. 19.
4 Doc. 20.
5 Magnolia, United, and Molina intervened as well.
6 Amerigroup Motion at p. 11.
2
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Amerigroup set its Motion to be heard on August 14. Mississippi True joined
Amerigroups Motion on August 9.7 On August 10, Mississippi True noticed its own
Motion for hearing and then issued a subpoena for Dr. David Dzielak, the Divisions
Executive Director.8 On its own initiative, the Court quashed the subpoena the same
day.9
The Division has not yet issued a final agency decision on Amerigroups or
Mississippi Trues award protests. The Division will not issue its decision until after
Amerigroup and Mississippi True submit their amended bid protests, which are due by
the close of business on August 18, 2017. If it denies the protests, the Division intends to
submit the contracts and its decision to the PSCRB for consideration at the PSCRBs
September 19, 2017 meeting.
If the PSCRB approves the contracts, or declines to consider the contracts, the
Division will then submit them to CMS for review and approval. The contracts have
been signed by the partiesbecause CMS requires the parties signatures prior to its
reviewbut the contracts are not valid and enforceable until the Division issues its final
agency decision and the contracts have been approved by CMS.10
ARGUMENT
The Court should deny the Motions because it lacks jurisdiction to grant the
requested relief. Even if it had jurisdiction, it should summarily deny the Motions
anyway because Amerigroups Motion effectively seeks a permanent injunction without
discovery or a trial and there is no threat of irreparable harm.
7 Doc. 27.
8 Doc. 28 and Doc. 30. The Division expects that Mississippi True will attempt to use
some of the public records that the Division produced on August 9. The Division objects
to Mississippi True using these documents without first supplementing its Motion to
make any new arguments and allowing the Division an opportunity to respond.
9 Doc. 34. In its order, the Court also instructed the parties not to file anything else
without permission. The Division therefore intends to request permission to file this
Response, and will request permission and an extension of time to respond to the
Complaints filed by Amerigroup and Mississippi True if necessary.
10 RFP at 3.5, 3.6.
3
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I. The Court does not have jurisdiction over either Protesters claims.
The threshold issue here is whether the Court has jurisdiction.11 It does not. The
Motions are, paradoxically, both moot and not yet ripe. Plaintiffs have not exhausted
their administrative remedies, so their claims on the merits are premature, and their
claims about the protest process are moot.
4
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15 Mississippi Gaming Comn v. Tupelo Industries, Inc., 747 So. 2d 287 (Miss. 1999).
16 Id. at 289.
17 Id.
18 Id.
19 Id. at 289-290 (We conclude the chancery court of Hinds County erred in granting
5
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before filing suit.21 The Court should find that it does not have jurisdiction to grant this
relief on the merits and should deny the Motion to the extent it seeks such relief.
21 E.g., CLC of Biloxi, LLC v. Mississippi Div. of Medicaid, 189 So. 3d 726, 730 (Miss. 2016);
Urban Developers, LLC v. City of Jackson, 468 F. 3d 281, 294 (5th Cir. 2006); In re Wilborn,
590 So. 2d 1381, 1386 (Miss. 1991); Everitt v. Lovitt, 192 So. 2d 422, 427-428 (Miss. 1966).
22 Falls v. Jefferson Davis Co. Public School Bd., 95 So. 3d 1223, 1225 (Miss. 2012) (quoting
6
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Neither is there any real dispute about implementing the contracts and
submitting them to CMS. Even though the contracts are signed, they are not valid and
enforceable until approved by CMS.28 And the Division will not submit the contracts to
CMS for review and approval until after the Division issues a final decision on the
protests and after the PSCRB considers the contracts.
If Amerigroup and Mississippi True lose their protests and the PSCRB approves
the contracts, then they may appeal the final agency decision to this Court. In the
interim, there is no real dispute about how the process will work. The Court should
deny the Motions for lack of jurisdiction over the procedural claims as well.
II. Even if the Court had jurisdiction, it should still deny the Motions.
The Court should deny the Motion even if it had jurisdiction because (a)
Plaintiffs are improperly trying to obtain ultimate relief sought in the Complaints
through a preliminary injunction; and (b) there is no evidence whatsoever of threatened
irreparable harm.
A. Plaintiffs are not entitled to rescind the award and obtain a new
procurement with new representatives as a preliminary injunction.
Plaintiffs seek to require the Division to rescind the award and issue and new
procurement with new representatives. This is the ultimate relief that they seek in the
Complaints. That is, it is the relief they seek to obtain after a trial on the merits.
The law does not permit them to seek this ultimate relief in the form of a
preliminary injunction, particularly when there has been no discovery and less than two
weeks notice of the hearing. Mississippi law is clear that, if the injunction will have
the effect of granting to the complainant all the relief that the complainant could obtain
on a final hearing, then it should be denied except in the rarest of cases.29 If the Court
determines it has jurisdiction, it should summarily deny the Motion as seeking ultimate
relief only obtainable after a trial on the merits.
7
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The Court should deny the Motions for lack of jurisdiction. Amerigroup and
Mississippi True have not exhausted their administrative remedies because the Division
has not issued a final decision on their protests. They could still be awarded the
contracts. Moreover, their claims related to the protest process are moot. There is no
actual dispute as to the time they will have to submit a revised appeal or whether the
contracts are currently valid and enforceable.
Finally, even if the Court had jurisdiction, it should still deny the Motions.
Plaintiffs are trying to obtain their ultimate relief without any discovery or a trial on the
merits and without any evidence of irreparable harm.
The Court should deny the Motions and award any other relief it deems
appropriate.
30 Id.
8
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/s/Kathryn R. Gilchrist
Kathryn R. Gilchrist (MSB #8946)
Everett White (MSB #101875)
GILCHRIST DONNELL PLLC
599B Steed Road
Ridgeland, MS 39157
(601) 790-2880 - Telephone
(601) 790-2900 - Fax
kgilchrist@gilchristdonnell.com
ewhite@gilchristdonnell.com
9
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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2017 I electronically filed the foregoing with the
Clerk of the Court using the MEC system, which sent the notification to all counsel of
record.
/s/Kathryn R. Gilchrist
Kathryn R. Gilchrist
10
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RESPONSE TO
(A) MISSISSIPPI TRUES MOTION FOR TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION (DKT. # 5), AND (B) AMERIGROUP
MISSISSIPPI, INC.S MOTION FOR PRELIMINARY INJUNCTION AND
EXPEDITED HEARING (DKT. # 20)
Molina Healthcare, Inc. and Molina Healthcare of Mississippi, Inc. (together, Molina)
le this response to (a) Mississippi Trues Motion for Temporary Restraining Order and/or
Preliminary Injunction (Dkt. # 5), and (b) Amerigroup Mississippi, Inc.s Motion for Preliminary
1. Mississippi True and Amerigroups Motions are improper and untimely, as both
before seeking corrective action from a court. Jeffrey J. Jackson et al., Encyclopedia of
Mississippi Law, Vol. 1 2:84 (2d ed. 2015). See also Davis v. Barr, 157 So. 2d 505, 508 (Miss.
entitled to judicial relief until the agency itself has been given its statutory and rules-based
opportunity to complete its review of the matter. Jackson, supra at 2:84. This principal is
stated in quite absolute terms: a complainant must exhaust the administrative remedies available
to him before resorting to the courts for resolution of his dispute. Id. (citing State v. Beebe, 687
3. In disregard of that principal, Mississippi True and Amerigroup are litigating this
dispute on two simultaneous frontsboth administratively before the Division and the
Mississippi Personal Services Contract Review Board and judicially before this Court. And in
each venue, Mississippi True and Amerigroup are asserting the same claims and seeking the same
relief: Both parties are asking this Court, the Division, and the PSCRB to, among other things,
rescind the award of the MississippiCAN contract to the successful offerors and issue a new
4. But as Mississippi True and Amerigroup are well aware, their protests are still
pending before the Division, and their protests and the award of the MississippiCAN contract
will thereafter be presented to the PSCRB for consideration. (E.g. Scheduling Order, Dkt. # 22 in
17-cv-000916 (setting for schedule for review by Division and PSCRB).) And until the Division
and the PSCRB have issued a nal decision, any request for judicial relief by a court of law is
prohibited.
5. Mississippi True and Amerigroups litigation strategy also violates the principal of
primary jurisdiction, which provides that, once a party has invoked administrative remedies, that
Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1221 (Miss. 2010) (citing Ill. Cent. R. Co. v.
2
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6. Simply enough, Mississippi True and Amerigroup are playing by their own set of
procedural rules, which rules violate clearly established law. In doing so, Mississippi True and
Amerigroup are wasting this Courts time and resources by asking this Court for relief that this
Court cannot grant. Worse, these litigation tactics are delaying the continued implementation of
the Mississippi Coordinated Access Network, which delay will harm millions of Mississippi
For these reasons, Molina requests that this Court deny the Motions. Molina hereby
reserves the right to more fully answer and respond to the Complaints (Dkt. #s 2 and 19) led by
Mississippi True and Amerigroup, as well as the Motions, until after the Court rst determines
its jurisdiction in this matter under the doctrines of exhaustion of administrative remedies and
primary jurisdiction.
3
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CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically led the foregoing with the Clerk of the
Court using the MEC system, which sent notication of such ling to all counsel of record,
including the following:
4
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MOTION TO INTERVENE
under M.R.C.P. 24, requesting that this Court allow UHC to intervene as a party to oppose the relief
requested in Mississippi Trues (MT) Complaint for Temporary Restraining Order, Preliminary
and Permanent Injunction, Declaratory Judgement and other Relief (the Complaint, Dkt #2) and
Motion for Temporary Restraining Order and/or Preliminary Injunction (the Motion for Injunctive
1. After the Mississippi Division of Medicaid awarded its Mississippi CAN contract to
other vendors, MT and Amerigroup Mississippi, Inc. (Amerigroup) both filed protests accusing
2. Those protests - which are entirely meritless - are still pending before the Division
and UHC has filed responses to each protest with the Division.
and Motion for Injunctive Relief in this Court, prematurely asking the Court to, among other things,
enjoin the Division from performing under the contract and declaring the award of the contract void.
AmeriGroup, like MT has filed a protest, and has moved to intervene in this action to seek the same
-1-
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relief requested by MT. Neither MT nor AmeriGroup can show that required irreparable harm could
4. Like the protests themselves, MTs Complaint and Motion for Injunctive Relief - as
5. To protect its rights and interests in the contract award to it, UHC requests that this
Court allow UHC to intervene in this proceeding to oppose the relief sought by UHC and
Amerigroup.
6. M.R.C.P. 24(a) provides for intervention as of right. Under that Rule, anyone shall
be permitted to intervene where that person claims an interest relating to the property or
transaction which is the subject of the action and he is so situated that the disposition of the action
may as a practical matter impair or impede his ability to protect that interest, unless the applicants
7. UHCs rights and interests in the performance of the MississippiCAN contract are
the very subject of this action. And MT - as well as Amerigroup - are asking the Court to enjoin
performance of that contract and, ultimately to declare the award of that contract void. The
disposition of the MT Complaint and Motion for Injunctive Relief will impair and impede UHCs
ability to protect its rights and interests in the contract. Indeed, disposition of this action in favor of
MT and Amerigroup will eviscerate UHCs rights and interests in the contract.
8. UHCs interests are not adequately protected by any other party to this proceeding.
In their protests, both MT and AmeriGroup have asserted that UHC made inaccurate representations
and that UHC was given more points than appropriate in the evaluation of the proposals. UHC is
in the best position to rebut these allegations on UHCs behalf. MT and AmeriGroup are challenging
-2-
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the awarding of a contract to UHC, and UHC should be allowed to respond by intervention.
9. If UHC is not allowed to intervene as of right, this Court should - alternatively - allow
UHC to intervene under M.R.C.P. 24(b), which provides for permissive intervention. Under that
Rule, anyone may be permitted to intervene where the persons claim or defense and the main
10. Both this action, and the administrative proceeding for the protests of MT and
Amerigroup, share the same questions of law and fact (i.e. whether the Division properly award the
contract). In addition, UHCs claims and defenses in the administrative proceeding involve the same
questions of law and fact as this action. Accordingly, UHC is - at the very least - entitled to
11. UHCs proposed response to Motion for Injunctive Relief is attached hereto as
Exhibit A in accordance with M.R.C.P. 24(c). UHCs answer to the Complaint will be filed in a
FOR THESE REASONS, UHC requests that this Court grant this Motion and allow UHC
to intervene in this case and oppose the relief sought in the Complaint and Motion for Injunctive
Relief.
Respectfully submitted
-3-
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OF COUNSEL:
CERTIFICATE OF SERVICE
I, Timothy J. Sterling, do hereby certify that I have this day filed the above and foregoing
Motion through the Courts ECF Filing System thereby serving a copy of said Motion upon all
parties of record.
-4-
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Plaintiff Mississippi True, pursuant to Miss. R. Civ. P. 65(b), moves this Court for a
temporary restraining order and/or preliminary injunction against Defendants David J. Dzielak,
Ph.D., in his official capacity as Executive Director of the Division of Medicaid, Office of the
Governor (Dzielak), and the Division of Medicaid, Office of the Governor, State of
(a) provide Mississippi True a reasonable amount of time as determined by the Court,
but in no event less than seven (7) working days after the production of the
competitive sealed proposals that have been requested by Mississippi True, in
which to supplement and complete its Protest of the intended award of contracts
pursuant to RFP #20170203 (the MississippiCAN contracts), as required by
Miss. Code Ann. 25-61-5;
(b) submit the MississippiCAN contracts to and obtain approval from the Mississippi
Personal Service Contract Review Board (PSCRB), as required by Miss. Code
Ann. 25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and
(c) not execute or implement the MississippiCAN contracts until Defendants have
fully complied with (a) and (b) above and Mississippi True has been allowed to
pursue all necessary judicial appeal rights as provided in MS ADC 27-1:5-
201(a).
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In support of this motion, Mississippi True shows to the Court the following:
On February 3, 2017, DOM issued RFP #20170203 seeking proposals from managed
care or coordinated care companies to serve as contractors for the MississippiCAN program.
Compl., Ex. A. 1 The MississippiCAN program is DOMs managed care program for Medicaid
beneficiaries and expends over $3 billion annually in state and federal funds. This money is paid
to the MississippiCAN contractors as a premium calculated on a per member per month basis.
On information and belief, RFP#20170203 represents the largest service contract procurement by
any Mississippi governmental agency. On or about April 7, 2017, Mississippi True timely
submitted a proposal in response to RFP #20170203 that complied in all particulars with the RFP
including the required $500,000.00 bond. By letter from Defendant Dzielak, dated June 15,
2017, Mississippi True was advised that its Proposal had been rejected and that a contract would
be awarded to three offerors other than Mississippi True, namely United, Magnolia Health, and
RFP #20170203 gives unsuccessful offerors the express right to protest a notice of non-
award within ten days of receipt of the notice. A protest must be accompanied by a $500,000
protest bond and state the specific grounds for the protest. Compl., Ex., A, at 34. Acceptable
Id., at 36. Section 25-61-5 of the Mississippi Public Records Act gives unsuccessful offerors
1
All except those referenced as Motion Ex. _____ are attached to the Complaint.
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who submit a public records request for the competitive sealed proposals a reasonable amount
of time, but in no event less than seven (7) working days after the production of the competitive
sealed proposals, to protest the procurement or intended award prior to contract execution.
Miss. Code Ann. 25-61-5(b). Mississippi True submitted a public records request to DOM for
the competitive sealed bids on June 26, 2017, and has not received the requested proposals from
timely filed its Protest of RFP #20170203. Compl., Ex. C. Mississippi True simultaneously
In its Protest, Mississippi True presented evidence that Mississippi Trues scores were the
product of bias and discrimination against Mississippi True because of its status as a PSHP,
coupled with errors in computing its score, both of which contributed to selection of contractors
that did not submit the best proposals. Mississippi Trues Protest includes evidence of specific
scores that were reduced based solely on its status as a PSHP. The difference in Mississippi
Trues score and the score of the lowest successful offeror was only 4.55 points. Mississippi
True established that had its score been free from scoring bias and discrimination, its score
would have increased by greater than 4.55 points and it would have been awarded one of the
contracts. The evidence presented in the Protest shows that the contract award decisions were
arbitrary, capricious, not supported by substantial evidence, and contrary to the clear letter and
intent of the Mississippi Legislature expressed in the PSHP statute. Mississippi True, therefore,
asserted that its score should be increased and it should be awarded one of the MississippiCAN
contracts. Alternatively, it requested that none of the contracts be awarded and that the contracts
be re-procured. The Protest expressly advised DOM that Mississippi True intends to supplement
its Protest after DOM produces the documents responsive to Mississippi Trues public records
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On July 7, 2017, without making any determination on Mississippi Trues Protest and
prior to producing the sealed competitive bids or any other requested public records, DOM
through its staff attorney, Paige Biglane, Esq., emailed Mississippi Trues attorney informing
Mississippi True that DOM (a) will not submit the contracts to the PSCRB for approval, (b) will
not afford Mississippi True any appeal rights, and (c) will move forward with contract
execution unless ordered to do otherwise by a court. Compl., Ex. D. This email clearly shows
that DOM has no intent to comply with state law or its own procedures and deprives Mississippi
Mississippi True will be deprived of its statutory and regulatory right to pursue its protest
through the PSCRB and appeal to this Court, if necessary. Defendants actions thus threaten to
severely and irreparably harm Mississippi True. In further support of this Motion, Mississippi
LEGAL ARGUMENT
Under Mississippi law, a party may obtain a temporary restraining order or preliminary
(1) [whether] there exists a substantial likelihood that [the] plaintiff will
prevail on the merits; (2) [whether] the injunction is necessary to prevent
irreparable harm; (3) [whether] the threatened harm to the applicant
outweighs the harm the injunction might do to the respondents; and (4)
[whether] entry of the injunction is consistent with the public interest.
Sec'y of State v. Gunn, 75 So.3d 1015, 1020 ( 14) (Miss.2011) (citation and internal quotation
marks omitted); Lauderdale v. DeSoto Co. ex rel. Bd. Of Supervisors, 196 So. 3d 1091, 1099
(Miss. 2016). The movant has the burden of establish these factors by a preponderance of the
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preliminary injunction even though a plaintiff's right to relief on the merits remains uncertain.
Id., citing, Gunn, 75 So.3d at 1021 ( 17). Mississippi True has more than adequately met this
standard.
Mississippi True is substantially likely to succeed on the merits of its claims. First, the
law is crystal clear that an unsuccessful offeror that requests the competitive sealed bids is
entitled to at least seven days after receipt thereof in which to file its protest. Section 25-61-5 of
Persons making a request for production of competitive sealed proposals after the notice
of intent to award is issued by the public body shall have a reasonable amount of time,
but in no event less than seven (7) working days after the production of the competitive
sealed proposals, to protest the procurement or intended award prior to contract
execution.
Miss. Code Ann. 25-61-5(1)(b). Mississippi True has requested but not yet received the
competitive sealed proposals. This request is the subject of a separate action filed by one of the
successful bidders seeking to protect the contents of its proposal. See In Re: UnitedHealthcare
cause no. G-2017-916 S/2, in the Chancery Court of Hinds County, Mississippi, First Judicial
District. Until that matter is resolved and Mississippi True is afforded a reasonable time not less
than seven days after receipt of the competitive sealed proposals, Mississippi Trues time for
DOM thus cannot lawfully decide Mississippi Trues protest until Mississippi True is
afforded a reasonable opportunity to receive and review the competitive sealed proposals and to
supplement its protest. The sealed competitive proposals and other public records requested by
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Mississippi True are absolutely necessary to perfect its protest. Paige Biglanes July 7 email
shows that Defendants intend to violate (or have already violated) their obligations under 25-
Second, pursuant to Miss. Code Ann. 25-9-120, subject to certain limited and
inapplicable exceptions, the PSCRB has the authority and responsibility to [a]pprove all
personal and professional services contracts involving the expenditures of funds in excess of
required to submit the proposed contracts to the PSCRB for its approval. Its refusal to do so is a
appropriate provisions of the Personal Service Contract Review Board Rules and Regulations
which are available for inspection at 210 East Capitol Street, Suite 800, Jackson, Mississippi or
downloadable at www.mspb.ms.gov. These PSCRB regulations also provide that the PSCRB
has the power and responsibility to [a]pprove all personal and professional services contracts
PSCRB Rules & Regs, Rule 2-103, at p. 11. DOM is specifically listed as a state agency under
the purview of the PSCRB. PSCRB Rules & Regs., App. A, at p. 131. Thus, DOM is required
by its own RFP and the PSCRB regulations incorporated by the RFP to submit the proposed
contracts to the PSCRB for its approval prior to execution of those contracts. Failure to do so is
a clear violation of the terms and provisions of the RFP as well as PSCRB regulations
DOMs position (stated in Ms. Biglanes email) that PSCRB approval is not required
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because the MississippiCAN contracts are insurance contracts is also contrary to Mississippi
The determination of the method of providing payment of claims under this article
shall be made by the division, with approval of the Governor, which methods may
be:
The division shall obtain services to be provided under either of the above-
described provisions in accordance with the Personal Service Contract Review
Board Procurement Regulations.
The authorization of the foregoing methods shall not preclude other methods of
providing payment of claims through direct operation of the program by the state
or its agencies.
(Emphasis added). Without conceding that this statute applies to the MississippiCAN contracts
at all, it unambiguously requires both approval by the Governor and compliance with PSCRB
regulations. The Governor has not approved the contract awards, and the PSCRB regulations as
explained above require approval by the PSCRB. Thus, Defendants have failed to satisfy the
Third, PSCRB regulations give an unsuccessful bidder the right to appeal an adverse
decision by the PSCRB to an appropriate court. Miss. Admin. Code 27-1:5-201(a). Thus, if the
Mississippi True receives an adverse decision from the PSCRB, it is entitled to appeal that
decision to court. Defendants decision to disregard the required protest and PSCRB approval
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and move straight to contract execution deprives Mississippi True of this right. This is a clear
2. Irreparable Harm
Mississippi True is prepared to prove that it was denied one of the Mississippi True
contract based solely on objectively erroneous scoring coupled with Defendants bias and
discrimination against Mississippi True as a PSHP. Defendants have shown overt bias against
Medicaid providers and favoritism toward out of state for-profit companies in disregard of the
Legislatures intent that a PSHP serve as one of the MississippiCAN contracts. This intent was
expressed clearly by the Legislature when it declared that the authorization and development of
provider-sponsored health plans as defined in Section 83-5-603 are vital to the continued
delivery and improvement of health care in this state and otherwise in the best interests of the
state and its citizens, Miss. Code Ann. 83-5-601 (emphasis added), and that [a]t least one (1)
purpose of the provider-sponsored health plan shall be to contract with the Division of Medicaid
to provide managed care services on a capitated basis pursuant to Section 43-13-117(H). Id.,
However, because Defendants have ignored the required protest and appeal procedure,
Mississippi True has been deprived of any opportunity to prove its case. 2 Thus, Defendants
actions irreparably deprive Mississippi True of its right to protest after receipt of the requested
competitive sealed bids, the right to challenge the non-award before the PSCRB, and the right to
judicially appeal the PSCRB decision if it remains adverse to Mississippi True. This Court must
enter the requested TRO and preliminary injunction in order to prevent this unlawful conduct and
2
Mississippi True is not asking the Court at this time to determine the ultimate issue of whether
Mississippi True should be granted one of the MississippiCAN contracts. That issue should be decided
later after the proper procedures are followed. At this time, Mississippi True asks only that the Court
enjoin Defendants to follow the established statutory and regulatory procedures for resolving a protest of
a state agency contract award.
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The threatened injury to Plaintiff far outweighs any potential injury to the Defendants.
Mississippi True will be clearly and severely injured because it will be denied a MississippiCAN
contract without any right to protest and otherwise challenge the contract awards, contrary to the
clear intent of the Mississippi Legislature expressed in Sections 83-5-601, et seq. The rights
provided to Mississippi True to protest the award and to appeal any adverse decision by the
Conversely, granting the requested injunctive relief will cause no injury to Defendants as
they will merely have to follow the proper procedures and applicable law for processing
Mississippi Trues Protest and approving the contract. 3 (Indeed, one wonders why the
Defendants are so anxious to avoid having their decision reviewed by another agency or a court.)
Even if this results in a minor delay in implementation of the contracts, any such delay will cause
Defendants no harm because Medicaid services will continue to be provided under the current
MississippiCAN contracts.
Mississippi True does not have an adequate remedy at law. If the preliminary injunction
afforded and exercises its administrative and judicial appeal rights. The bell cannot be un-rung.
Mississippi True will have no breach of contract claim because it has not been awarded one of
the contracts. Also, as recognized by the Mississippi Supreme Court, under normal
3
Granting this motion will actually protect Defendants from potential harm because they may be held
personally liable under Miss. Code Ann. 31-7-57 if they authorize an award of a contract in violation of
law. See 27 Miss. Admin. Code 1:3-101.03.
Case: 25CH1:17-cv-000966 Document #: 5 Filed: 07/13/2017 Page 10 of 12
circumstances, an unsuccessful bidder should seek a court order requiring a public agency to
follow the established RFP procedures before seeking compensatory damages. See, e.g., City of
Durant v. Laws Constr. Co., Inc., 721 So. 2d 598, at 28 (Miss. 1998).
Granting the requested injunctive relief serves the public interest by, among other things,
enforcing the policies stated in Mississippi Code Section 25-9-120, Section 25-61-5(1)(b), as
well as Sections 83-5-603, -605, -607, Section 25-9-120, Section 25-61-5(1)(b), and other
applicable statutes and regulations discussed herein. Further, granting the requested injunction
ensures that Defendants fulfill their obligations to administer the Mississippi Medicaid program
as required by state law. The public interest is never served by condoning the violation of valid
statutes and regulations by state agencies and the officials appointed to run them.
6. Bond Posted
Mississippi True has already posted a $500,000 bond with DOM as a condition to filing
its Protest. Motion Ex. A. This bond more than adequately satisfies the requirement of security
under Miss. R. Civ. P. 65(c). Mississippi True requests the Court to relieve Mississippi True of
7. Notice to Defendants
Mississippi True hereby gives notice by service upon the Honorable Jim Hood, Attorney
General, and Paige Biglane, Esq., Special Assistant Attorney General assigned to DOM, that it
will bring this motion for hearing as soon as counsel may be hear.
CONCLUSION
For the reasons state above and in the complaint, Mississippi True respectfully requests
that this Court enter a temporary restraining order and preliminary injunction ordering and
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(a) provide Mississippi True a reasonable amount of time as determined by the Court,
but in no event less than seven (7) working days after the production of the
competitive sealed proposals that have been requested by Mississippi True, in
which to supplement and complete its Protest of the intended award of contracts
pursuant to RFP #20170203 (the MississippiCAN contracts), as required by
Miss. Code Ann. 25-61-5;
(b) submit the MississippiCAN contracts to and obtain approval from the Mississippi
Personal Service Contract Review Board (PSCRB), as required by Miss. Code
Ann. 25-9-120, the PSCRB regulations, and the terms of RFP #20170203; and
(c) not execute or implement the MississippiCAN contracts until Defendants have
fully complied with (a) and (b) above and Mississippi True has been allowed to
pursue all necessary judicial appeal rights as provided in MS ADC 27-1:5-
201(a).
Respectfully submitted,
OF COUNSEL:
WISE CARTER CHILD & CARAWAY, P.A.
401 East Capitol Street, Suite 600
Jackson, Mississippi 39201
Post Office Box 651
Jackson, Mississippi 39205
(P): 601-968-5500
(F): 601-944-7738
Case: 25CH1:17-cv-000966 Document #: 5 Filed: 07/13/2017 Page 12 of 12
CERTIFICATE OF SERVICE
I, GEORGE H. RITTER, do hereby certify that I have this day caused to be served via
hand-delivery and the MEC a true and correct copy of the above and foregoing document to: