MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2026 ME 79
Docket: BCD-25-275
Argued: February 4, 2026
Decided: August 4, 2026
Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, AND DOUGLAS, JJ.
PENQUIS C.A.P., INC.
v.
DEPARTMENT OF ADMINISTRATIVE AND FINANCIAL SERVICES et al.
STANFILL, C.J.
[¶1] The Maine Department of Health and Human Services (DHHS)
contracts with private entities to provide medical nonemergency
transportation (NET) services for individuals eligible for MaineCare or the
Children’s Health Insurance Program. In 2023, DHHS conducted a competitive
bidding process to award a new NET service contract for each of Maine’s eight
transit regions, see 5 M.R.S. §§ 1825-B to 1825-D (2026);1 18-554 C.M.R. ch. 110
(effective Apr. 22, 2010), and it ultimately awarded contracts for all eight
regions to ModivCare Solutions, LLC (ModivCare). Aggrieved bidders
challenged the awards for several of the regions by bringing administrative
1 Several provisions of the procurement statute have been amended since 2023, but none of those
amendments are relevant to this appeal. We thus cite the most recent version of the Maine Revised Statutes in our references to the procurement statute.
2
appeals in the Department of Administrative and Financial Services (DAFS), see
5 M.R.S. § 1825-E (2026); 18-554 C.M.R. ch. 120 (effective May 24, 1995), and
then seeking judicial review in the Superior Court, see 5 M.R.S. §§ 1825-F,
11001(1) (2026); M.R. Civ. P. 80C. We recently rejected a challenge by Waldo
Community Action Partners (Waldo CAP) to the award for Region 5, see Waldo
Cmty. Action Partners v. Dep’t of Admin. & Fin. Servs. (Waldo CAP), 2026 ME 13,
¶¶ 18, 40, 354 A.3d 319, and we now address a challenge by Penquis C.A.P., Inc.
(Penquis CAP), to the awards for Regions 2, 3, 4, and 8. For the reasons
explained below, we affirm the judgment of the Business and Consumer Docket
(McKeon, J.) upholding the awards.
I. BACKGROUND
[¶2] Our Waldo CAP opinion provides a comprehensive overview of the
NET service program and the 2023 bidding process, id. ¶¶ 5-13, so we focus
here on the facts and procedure specific to Penquis CAP’s appeal. The facts are
drawn from the supported findings of the DAFS appeal committee, and the
procedural history is drawn from administrative and court records. See id. ¶ 4.
[¶3] DHHS posted a Request for Proposals (RFP) for NET service
contracts in May 2023, providing instructions for bidders and setting out the
3
criteria by which proposals would be evaluated. Pursuant to the RFP, proposals
were to be organized and scored in four sections:
• Section I – Preliminary Information (No points)
• Section II – Organization Qualifications and Experience (25 points)
• Section III – Proposed Services (50 points)
• Section IV – Cost Structure Acknowledgement (25 points)
The RFP set out various requirements for the form and structure of each
section, and it warned bidders that “[f]ailure to use the outline specified in [the
RFP], or failure to respond to all questions and instructions throughout the RFP,
may result in the proposal being disqualified as non-responsive or receiving a
reduced score.”
[¶4] Penquis CAP, which was the incumbent NET service provider for
Regions 3 and 4, submitted proposals for those two regions as well as for
Regions 2 and 8. Across all eight regions, DHHS received about forty proposals
from seven different bidders.
[¶5] The proposals were evaluated by a panel of four DHHS employees.
The panelists first reviewed the proposals individually, without scoring them,
and then met as a group to assign scores by consensus. With respect to section
IV of the RFP, the panelists awarded the maximum score of twenty-five to any
proposal that included a signed copy of a NET cost-structure-acknowledgement
form. With respect to sections II and III, the panelists assigned initial 4
“mid-point” scores to any proposal that met the formal requirements of the RFP
and then adjusted those scores up or down “based on the value of the proposal’s
responses.”
[¶6] One of the panelists was a DHHS supervisor who is responsible for
overseeing the NET service program. The supervisor shared his “high-level
assessment” of the past performance of the incumbent NET service providers—
Penquis CAP, ModivCare, and Waldo CAP—with the other panelists, but none
of them reviewed any of DHHS’s records regarding the providers’ past
performance.
[¶7] ModivCare received the highest overall score for all eight regions
and, thus, was awarded the contracts. For Regions 2, 3, 4, and 8, Penquis CAP
and ModivCare each received the maximum score for section II (Organization
Qualifications and Experience), but ModivCare received a higher score than
Penquis CAP for section III (Proposed Services).
[¶8] Penquis CAP received notice of the awards to ModivCare in October
2023 and timely requested an opportunity to challenge the awards before a
DAFS appeal committee. See 5 M.R.S. § 1825-E(2). Penquis CAP’s request was
granted; the case was consolidated with Waldo CAP’s appeal from the award
5
for Region 5; ModivCare intervened; and the presiding officer of the appeal
committee scheduled a hearing for December 2023.
[¶9] While the administrative proceedings were pending, Penquis CAP
made a series of requests under the Freedom of Access Act (FOAA), 1 M.R.S.
§§ 400-414 (2026),2 for DHHS records related to the NET service program.
First, in October 2023, Penquis CAP requested each of the NET service
proposals that had been submitted, as well as the panelists’ notes and
scoresheets. DHHS fulfilled that request in November, producing roughly
19,000 pages of documents. Then, in November and December 2023, Penquis
CAP requested all communications between DHHS and ModivCare; all
communications between DHHS and any of its agents regarding COVID-19
transportation; and all NET service incident reports filed between July 2014
and November 2023 that involved either ModivCare or Penquis CAP. DHHS
partially fulfilled those requests by mid-December, but it informed Penquis CAP
that it would not be possible to complete all of them in time for the appeal
committee hearing, citing the size of the requests and need to redact
confidential information.
2 Several provisions of FOAA have been amended since 2023, but none of those amendments are
relevant to this appeal. We thus cite the most recent version of the Maine Revised Statutes in our references to FOAA.
6
[¶10] Penquis CAP requested, and neither DHHS nor ModivCare
opposed, a continuance of the appeal committee hearing from December 2023
to February 7, 2024, to allow additional time for the processing of its FOAA
requests. In January 2024, however, Penquis CAP moved to continue the
hearing until all of its requests were fulfilled in their entirety. The presiding
officer, after hearing arguments from the parties, denied Penquis CAP’s motion
and confirmed that the hearing would begin on February 7.
[¶11] On January 29, 2023, Penquis CAP filed in the Superior Court
(Kennebec County) a complaint alleging that DHHS was in violation of its FOAA
obligations and a motion for preliminary injunctive relief. See 1 M.R.S. § 409.
Penquis CAP requested that the Superior Court stay the administrative
proceedings. The court (Lipez, J.) initially stayed the administrative
proceedings, but on February 16, it lifted the stay and denied Penquis CAP’s
request for preliminary injunctive relief.
[¶12] The appeal committee finally held its hearing on March 20, 21, and
22, 2024. The committee heard testimony from the four DHHS review panelists
and from executive officials at Penquis CAP and Waldo CAP.
[¶13] In a written decision dated April 18, 2024, the committee validated
each of the awards challenged by Penquis CAP and Waldo CAP. Penquis CAP
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timely filed in the Superior Court (Penobscot County) a petition for judicial
review of the committee’s decision. See 5 M.R.S. § 11002 (2026). The case was
transferred to the Business and Consumer Docket in June 2024, see M.R. Civ. P.
131, and after briefing and oral argument, the court (McKeon, J.) entered an
order on May 23, 2025, affirming the decision of the appeal committee. Penquis
CAP timely appealed, see 5 M.R.S. § 11008(1) (2026); M.R. App. P. 2B(c)(1), and
moved to stay the contract awards. The appellees—DHHS, DAFS, and
ModivCare—did not object to the motion, and we entered a stay of the awards
pending appeal.
II. DISCUSSION
[¶14] Penquis CAP argues that the decision of the appeal committee
should be vacated for two basic reasons: (1) the presiding officer’s decision to
hold the hearing before the FOAA requests were fulfilled denied Penquis CAP
its right to a “full and fair hearing”; and (2) the committee erred in concluding
that DHHS’s bidding and decision-making process was not unlawful, unfair, or
arbitrary and capricious.
[¶15] Because the Business and Consumer Docket acted in an
intermediate appellate capacity under M.R. Civ. P. 80C, we review directly the
decision of the DAFS appeal committee. See, e.g., Waldo CAP, 2026 ME 13, ¶ 24, 8
354 A.3d 319; Pine Tree Legal Assistance, Inc. v. Dep’t of Hum. Servs., 655 A.2d
1260, 1264 (Me. 1995). We review the decisions of administrative agencies for
“errors of law, factual findings unsupported by substantial record evidence, or
an abuse of discretion.” Waldo CAP, 2026 ME 13, ¶ 25, 354 A.3d 319 (quotation
marks omitted); see 5 M.R.S. § 11007(4)(C) (2026).
A. Penquis CAP’s Claims Related to Its Freedom of Access Act Requests
[¶16] Penquis CAP argues that the appeal committee deprived Penquis
CAP of its right to a “full and fair hearing” by denying its request to postpone
the hearing until all of its FOAA requests were fulfilled. The source of authority
for this claim has shifted over the course of these proceedings. Before the
appeal committee, Penquis CAP grounded its argument in the constitutional
right to due process. In the Business and Consumer Docket, however, Penquis
CAP argued that the committee violated both its constitutional rights and its
statutory rights under the agency procurement statute, 5 M.R.S. § 1825-E(3),
and Maine’s Administrative Procedure Act (APA), 5 M.R.S. § 9056(2) (2026).
Penquis CAP has now dropped its constitutional argument, relying on only the
procurement statute and the APA.
[¶17] The State appellees (DHHS and DAFS) argue that Penquis CAP’s
arguments related to the procurement statute and the APA should not be
9
reviewed because Penquis CAP did not raise them before the appeal committee.
In general, arguments that were not raised before an agency decisionmaker
may not be addressed on judicial review. See, e.g., Indus. Energy Consumer Grp.
v. Pub. Utils. Comm’n, 2024 ME 60, ¶ 29, 320 A.3d 437; New Eng. Whitewater
Ctr., Inc. v. Dep’t of Inland Fisheries & Wildlife, 550 A.2d 56, 58-61 (Me. 1988).
We need not determine whether Penquis CAP sufficiently raised these
arguments before the appeal committee, however, because they are
unpersuasive in any event.
[¶18] Penquis CAP argues that it was entitled to obtain DHHS’s records
and to present them at the appeal committee hearing by virtue of two
provisions in the procurement statute and the APA. The procurement statute
provides:
Members of an appeal committee appointed under this section
shall meet at the appointed time and place in the presence of the
petitioner and such individuals as the petitioner determines
necessary for a full and fair hearing. The petitioner may present to
the appeal committee any materials the petitioner considers
relevant to the appeal.
5 M.R.S. § 1825-E(3). The APA provides that, in “adjudicatory proceedings,”
unless otherwise limited by the agency to prevent repetition or
unreasonable delay in proceedings, every party shall have the right
to present evidence and arguments on all issues, and at any hearing
to call and examine witnesses and to make oral cross-examination
of any person present and testifying.
10
5 M.R.S. § 9056(2); see also 5 M.R.S. § 8002(1) (2026) (defining “adjudicatory
proceedings”).
[¶19] When interpreting statutes, our analysis begins—and in this case,
ends—with the plain text. See, e.g., Waldo CAP, 2026 ME 13, ¶ 26, 354 A.3d 319
(explaining that we construe a statute “based on its plain, unambiguous
meaning unless the result is illogical or absurd” (quotation marks omitted)).
The two provisions cited by Penquis CAP plainly authorize parties to present
certain evidence at certain administrative hearings,3 but neither says a thing
about a party’s ability to obtain evidence that it does not already possess.
Indeed, as Penquis CAP acknowledged at oral argument, there is no formal
discovery in administrative appeals from agency purchasing decisions, and we
see nothing in the statutes that would require informal discovery by way of
FOAA.4 Thus, contrary to Penquis CAP’s claim of a right to obtain any DHHS
records that it deemed relevant to its appeal, the procurement statute and the
The parties dispute whether the appeal committee proceedings constituted “adjudicatory
3
proceedings” for the purposes of the APA. See 5 M.R.S. § 8002(1). We need not address that issue, however, because even if the APA applies, Penquis CAP received the process to which it was entitled.
4Our plain reading of the statutory text is bolstered by the fact that the procurement statute provides an expedited timeline for appeals from agency purchasing decisions. An aggrieved bidder must request an appeal “within 15 days of notification of the award,” and if a hearing is granted, it must be held “within 60 days of receipt of the request for an appeal.” 5 M.R.S. § 1825-E(2)-(3). Penquis CAP’s claim that a hearing may not proceed until an aggrieved bidder has received any and all documents that it requested through FOAA is inconsonant with this condensed timeline.
11
APA entitled Penquis CAP merely to present whatever relevant evidence it
already had.
[¶20] Moreover, although the procurement statute says that Penquis
CAP “may present to the appeal committee any materials [it] considers relevant
to the appeal,” 5 M.R.S. § 1825-E(3), it does not abrogate the committee’s ability
to determine whether the evidence is relevant to the appeal. Here, all of
Penquis CAP’s outstanding requests were for DHHS’s internal records
regarding the past performance of NET service providers, and the DHHS
panelists testified that they did not review those records as part of the 2023
bidding process. Thus, even if Penquis CAP were somehow entitled to obtain
additional evidence from DHHS, it has not shown that the records it requested
were in any way relevant to its appeal.
[¶21] Because Penquis CAP had no right under either the procurement
statute or the APA to access evidence that was not already in its possession, the
appeal committee neither violated the law nor abused its discretion in deciding
to hold the hearing on Penquis CAP’s appeal before its FOAA requests were
fulfilled. See Waldo CAP, 2026 ME 13, ¶¶ 26, 33, 354 A.3d 319.
12
B. Penquis CAP’s Other Claims of Error
[¶22] Penquis CAP also argues that the appeal committee erred in
validating the contract awards to ModivCare for the following three reasons:
(1) mistakes in the notes of individual DHHS panelists rendered the review
process unfair; (2) the team-consensus notes do not sufficiently document how
the panelists’ observations were “translated” into specific point values; and (3)
the panelists afforded preferential treatment to ModivCare with respect to
COVID-19 transportation and past NET service performance.
[¶23] In an appeal from an agency purchasing decision to a DAFS appeal
committee, “[t]he evidence presented must specifically address and be limited
to one or more of the following: A. Violation of law; B. Irregularities creating
fundamental unfairness; or C. Arbitrary or capricious award.” 18-554 C.M.R. ch.
120, § 3(2); see, e.g., Waldo CAP, 2026 ME 13, ¶ 25, 354 A.3d 319. “The party
challenging the contract award has the burden of proof, and the appeals
committee ‘shall look for clear and convincing evidence that one or more of the
[foregoing] standards . . . has been proven by the petitioner.’” Waldo CAP, 2026
ME 13, ¶ 25, 354 A.3d 319 (alterations in original) (citation omitted) (quoting
18-554 C.M.R. ch. 120, § 4(1)).
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[¶24] We review the decision of the DAFS appeal committee for “errors
of law, factual findings unsupported by substantial record evidence, or an abuse
of discretion.” Id. (quotation marks omitted). We “give considerable deference
to an agency’s interpretations of its own regulations, and [we] may not
substitute our judgment for that of the agency on questions of fact.” Id.
(citations omitted); accord AngleZ Behav. Health Servs. v. Dep’t of Health & Hum.
Servs., 2020 ME 26, ¶ 12, 226 A.3d 762. Because Penquis CAP bore the burden
of proof before the appeal committee, it can prevail on judicial review only by
demonstrating that the record compelled the committee to find, by clear and
convincing evidence, at least one ground for invalidating the awards. See Waldo
CAP, 2026 ME 13, ¶ 25, 354 A.3d 319; Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME
27, ¶ 16, 967 A.2d 676. We address Penquis CAP’s three claims in turn.
[¶25] Penquis CAP first argues that the committee was compelled to
invalidate the awards based on mistakes in the individual review notes of some
of the DHHS panelists. Specifically, Penquis CAP emphasizes that one of the
panelists copied and pasted her notes about Penquis CAP’s proposals across the
various regions, despite differences in the proposals themselves, and that there
were a handful of errors in the individual review notes of the other panelists. 14
[¶26] The appeal committee found that Penquis CAP identified “some
irregularities” in the individual review notes, but it reasoned that those
irregularities did not reflect “fundamental unfairness” because they were cured
by the consensus scoring process. We agree. The panelists testified that when
they convened as a group to score each proposal, they looked at each panelist’s
individual review notes, resolved any inconsistencies by referencing the
proposal itself, and then reached a consensus about the scores. There was no
evidence that the minor errors in the individual review notes impacted the
consensus scores at all, let alone to Penquis CAP’s detriment.
[¶27] Penquis CAP next asserts that the committee was compelled to
invalidate the awards because the consensus scoring notes did not sufficiently
document the panelists’ rationale for awarding specific scores to specific
proposals. Penquis CAP claims that the notes do not provide “substantive
information that supports the scoring,” as required by the rules governing
agency procurement. See 18-554 C.M.R. ch. 110, § 3(A).
[¶28] The appeal committee concluded that the panelists complied with
the rules because “[t]he relative scoring weights were published in the RFP and
were used in the final consensus scoring” and “[t]he information collected was
sufficiently substantive to document the effort made by the reviewers and to
15
support their scoring.” Here, too, we agree. For each proposal, the panelists
left several pages of consensus notes assessing the substance of the proposal in
light of the requirements set out in the RFP, and these notes offer ample support
for the panelists’ scoring decisions.5 Although the notes do not indicate
precisely how the panelists’ qualitative observations were “translated” into
point values, the panelists were not required to provide such granular detail.
Nothing in the statute, rules, or RFP required as much, and, indeed, we have
previously recognized that strict adherence to a mathematical formula or
rubric is “inconsistent with the search for consensus.” Pine Tree Legal
Assistance, 655 A.2d at 1264; see also Waldo CAP, 2026 ME 13, ¶ 39, 354 A.3d
319 (“The review panel might not have had a precise rubric for its point
deductions, but rigid mathematical certainty is not required.”).
[¶29] Finally, Penquis CAP argues that the appeal committee was
compelled to invalidate the awards based on the panelists’ “disparate
treatment” of Penquis CAP and ModivCare. Specifically, Penquis CAP claims
that the panelists (1) credited ModivCare, but not Penquis CAP, for having
5 For example, the notes for each of Penquis CAP’s proposals indicate that section III “did not follow the outline of the RFP[,] including the numbering, section, and sub-section headings[,] making [the] submission difficult to review.” The notes also indicate that Penquis CAP either “[d]id not address” or provided information that was "[m]inimally responsive” to various requirements in the RFP.
16
provided COVID-19-related transportation outside of its NET service program,
and (2) did not consider Penquis CAP’s success, and ModivCare’s failure, in
complying with corrective action plans under the prior NET service contracts.
[¶30] The appeal committee rejected Penquis CAP’s claims for at least
three reasons. First, ModivCare properly included information about its
COVID-19 services in section II (Organization Qualifications and Experience) of
its proposals, while Penquis CAP did not. 6 Second, there was evidence that the
three incumbent NET service providers had addressed performance issues and
complied with their corrective action plans more or less equivalently. Third,
any error was likely harmless, given that Penquis CAP’s claims pertain
exclusively to the scoring of section II and that Penquis CAP’s and ModivCare’s
proposals each received the maximum score for that section. Once again, we
agree. Simply put, there was scant evidence in the administrative record to
support Penquis CAP’s claim of disparate treatment.
[¶31] In short, the administrative record did not compel the appeal
committee to find, by clear and convincing evidence, any ground for
invalidating DHHS’s awards. Thus, the appeal committee neither erred nor
6 Penquis CAP misplaced that information in section III (Proposed Services) of its proposals.
17
abused its discretion in validating the awards to ModivCare. See Waldo CAP,
2026 ME 13, ¶¶ 25, 40, 354 A.3d 319.
The entry is:
Judgment affirmed. Stay of the decision
awarding the contracts lifted.
Alfred J.F. Morrow III, Esq. (orally), Jensen Baird, Portland, for appellant Penquis C.A.P., Inc.
Aaron M. Frey, Attorney General, and Halliday Moncure, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of
Administrative and Financial Services
Aaron M. Frey, Attorney General, Brendan Kreckel, Asst. Atty. Gen., and
Margaret Machaiek, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services
A. Robert Ruesch, Esq., and Sarah K. Grossnickle, Esq., Verrill Dana, LLP, Portland, for appellee ModivCare Solutions, LLC
Business and Consumer Docket docket number APP-2024-8
FOR CLERK REFERENCE ONLY