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Deputy Mayor for Health and Human Services Wayne Turnage is pitching the D.C. Council on a bill that would carve out an exemption to the District’s contracting law for three healthcare-related contracts. The bill would apply to three contracts worth over $1.5 billion and is an attempt to avoid the effects of Contract Appeals Board Judge Nicholas Majett‘s ruling issued in August 2020.
The Office of Contracting and Procurement has apparently been violating contracting law for several years by allowing applicants to submit incomplete subcontracting plans in their initial applications. OCP has allowed bidders to amend those plans later in the process. Majett ruled they can’t do that and said full subcontracting plans that include a minimum 35 percent set-aside for local businesses must be submitted with a firm’s initial application or it will be disqualified.
The three contracts involve D.C.’s Medicaid program, the District of Columbia Access System, which evaluates residents’ eligibility for healthcare and other public benefits, and the Medicaid management information system, the contract at issue in Majett’s ruling. A spokesperson for the Contract Appeals Board declined to comment.
Turnage argues that the vendors who submitted proposals for the three contracts did so according to OCP’s practices. They shouldn’t be penalized because the agency wasn’t following the law, he insists.
If the bill is not approved, Turnage says, Majett’s ruling would disrupt the solicitations and in some cases the work that’s already in progress. Disruption in the Medicaid contract, for example, means about 67,000 members would be forced to change health plans for the second time in one year.
Turnage previously lobbied councilmembers on emergency version of the legislation that would have applied only to the Medicaid contract. When he couldn’t find the nine votes necessary for an emergency bill to pass, the administration shifted to a permanent and expanded version.
Turnage says he hasn’t spoken to lawmakers since his emergency pitch, but he says Ward 7 Councilmember Vince Gray was supportive at the time. A staffer in Gray’s office tells LL that Gray is committed to holding a hearing on the permanent version of the bill, likely in April. Gray chairs the Committee on Health, which oversees Turnage’s office as well as the Department of Health Care Finance, which issued all three contracts.
There is at least some opposition. Ward 5 Councilmember Kenyan McDuffie, who chairs the Committee on Business and Economic Development where the bill is also referred for a hearing, did not support the emergency version of the bill. McDuffie did not immediately reply to LL’s messages, but earlier this year, he said he views OCP’s illegal procedures as more than an oversight or technicality.
“This substantively violates existing CBE law, and I would argue in the process it deprives the District’s small businesses of important contracting opportunities,” he told LL in January.
At-Large Councilmember Robert White, who chairs the Committee on Government Operations and Facilities, which has oversight of OCP, does not support the bill.
“The real issue here is that the mayor introduced a bill that would retroactively exempt some businesses from D.C.’s procurement laws, and I just think that’s a bad precedent for us to set,” White says. “It also undermines the confidence that our small businesses have in our government standing up for them, particularly during such a difficult time.”
He says he hasn’t spoken to Turnage or other administration officials about the bill, and adds some people may interpret it as a form of contract steering.
In the Medicaid contract, which is split among three plan providers for example, only MedStar will benefit from the bill. CareFirst and AmeriHealth both submitted proposals the followed the CBE requirement.
“Our procurement has to be consistent and reliable, and no matter what happens going forward, exempting a couple businesses from the law is really not going to look good for the city,” White says.