Court Decision released detailing protest denial of CMS National Correct Coding Initiative award

OPINION

This is a post-award bid protest by Myriddian, LLC (“Myriddian”) of an award by the Department of Health and Human Services, Centers for Medicare & Medicaid Services (“CMS” or “the agency”). The contract was awarded to intervenor J29, Inc. (“J29”) under the National Correct Coding Initiative program (“NCCI”) for coding edits and other methodologies to ensure efficient and proper adjudication of Medicare and Medicaid claims (among other related services).    The parties filed cross-motions for judgment on the administrative record. After full briefing, we held oral argument on September 20, 2023, and announced that we would deny the protest. The reasons are set out here. Because CMS completed a thorough and reasonable best value analysis of the proposals before awarding a contract to J29, we grant defendant’s and intervenor’s motions for judgment on the administrative record and deny plaintiff’s motion.

DISCUSSION

The solicitation contemplated that the agency would use a best value analysis in determining which proposal best suited the agency’s needs. “‘Best value’ means the expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement.” FAR 2.101. This method of choosing an offeror generally comes into use “when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.” FAR 15.101-1(a). An SSA is entrusted to use her best “independent judgment” to select a bid “based on a comparative assessment of proposals against all source selection criteria in the solicitation.” FAR 15.308. The SSA’s determination regarding which proposal provides the best value to the government is afforded a high degree of deference. Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324, 1330 Myriddian argues that CMS conducted its Best Value analysis improperly for three reasons: that CMS erroneously evaluated the qualifications of J29’s proposed personnel (particularly the Program Director and the Medical Director); that CMS did not properly compare the technical merits of the two proposals; and that CMS did not correctly conduct a best value tradeoff analysis in choosing a proposal. We review CMS’s decision to consider whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. …” 5 U.S.C. § 706 (2018); 28 U.S.C. §1491(b)(4) (2018).

CONCLUSION

Because the agency provided a thorough, reasonable justification for choosing J29’s proposal, the following is ordered:

1. Plaintiff’s motion for judgment on the administrative record is denied.
2. Defendant’s motion for judgment on the administrative record is granted.
3. Intervenor’s motion for judgment on the administrative record is granted.

See the decision here.

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