Case: 19-2225   Document: 69     Page: 1   Filed: 03/31/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

        WELLPOINT MILITARY CARE CORP.,
                Plaintiff-Appellant

                            v.

     UNITED STATES, OPTUM PUBLIC SECTOR
               SOLUTIONS, INC.,
               Defendants-Appellees
              ______________________

                       2019-2225
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:19-cv-00676-LKG, Judge Lydia Kay Griggsby.
                  ______________________

                 Decided: March 31, 2020
                 ______________________

     MARK COLLEY, Arnold & Porter Kaye Scholer LLP,
 Washington, DC, argued for plaintiff-appellant. Also rep-
 resented by KARA L. DANIELS, MICHAEL EDWARD SAMUELS,
 NATHANIEL EDWARD CASTELLANO.

     STEVEN MICHAEL MAGER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for defendant-appellee
 United States. Also represented by JOSEPH H. HUNT,
 ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.
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 2           WELLPOINT MILITARY CARE CORP. v. UNITED STATES




    JASON ANDREW CAREY, Covington & Burling LLP,
 Washington, DC, argued for defendant-appellee Optum
 Public Sector Solutions, Inc. Also represented by KEVIN
 BARNETT, MARK MOSIER, KAYLEIGH SCALZO, EVAN RYERSON
 SHERWOOD, BROOKE STANLEY.
                 ______________________

      Before DYK, TARANTO, and CHEN, Circuit Judges.
 DYK, Circuit Judge.
     This case involves a contract awarded by the United
 States Department of Veterans Affairs (“VA”) to Optum
 Public Sector Solutions (“OPSS”) for developing and man-
 aging the VA’s program to provide veterans access to com-
 munity-based healthcare in Region 3 of the VA’s
 Community Care Network. WellPoint Military Care Cor-
 poration (“WellPoint”), an unsuccessful bidder, brought a
 bid protest action in the Court of Federal Claims (“Claims
 Court”) challenging the award. The Claims Court found
 that the VA conducted a reasonable best value determina-
 tion, denied WellPoint’s request for injunctive relief, and
 dismissed WellPoint’s bid protest challenge. We affirm.
                        BACKGROUND
     On December 28, 2016, the VA issued Request for Pro-
 posal No. VA791-16-R-0086 (“the Solicitation”) seeking
 proposals to develop and manage community-based
 healthcare networks in the VA’s Community Care Net-
 work. The Solicitation stated that the Community Care
 Network was divided into four geographic regions, and that
 the VA contemplated awarding a maximum of one single-
 award, firm-fixed-price indefinite-delivery, indefinite-
 quantity contract per region. The Solicitation explained
 that the VA would conduct a negotiated best value deter-
 mination based on four factors: (1) Technical, (2) Past Per-
 formance, (3) Socioeconomic Concerns, and (4) Price. The
 Solicitation stated that “[f]actors 1, 2, and 3 are listed in
 descending order of importance,” and that “[t]he non-price
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 WELLPOINT MILITARY CARE CORP. v. UNITED STATES              3



 factors . . . , when combined, are significantly more im-
 portant than Price.” J.A. 542. The Technical factor was
 further divided into three subfactors, (1) Network Manage-
 ment and Claims Adjudication, (2) Management Approach,
 and (3) Corporate Experience/Capability. The Solicitation
 stated that “subfactors 1 and 2 are of equal importance,
 and both individually are more importan[t] than subfactor
 3.” Id. With respect to subfactor 3, the Solicitation re-
 quired that each bidder:
    Provide a general corporate background, experi-
    ence, and qualifications of the organization to in-
    clude any offeror’s joint venture partner(s) or
    affiliate(s)/parent organization(s) if the infor-
    mation provided shows that the workforce, man-
    agement, facilities or other resources of the joint
    venture partner(s), affiliate(s)/parent organiza-
    tion(s) will bear on the likelihood of successful per-
    formance by the Offeror.
 J.A. 536.
     OPSS and WellPoint submitted bids for Region 3 of the
 Community Care Network (“Region 3”). 1 Ultimately, the
 evaluation of the two competing bidders was as follows:




    1    Region 3 includes Oklahoma, Arkansas, Louisiana,
 Tennessee, Mississippi, Alabama, Georgia, South Carolina,
 Florida, Puerto Rico, and the United States Virgin Islands.
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     On May 8, 2019, WellPoint filed a post-award bid pro-
 test in the Claims Court seeking declaratory and injunctive
 relief. As relevant to this appeal, WellPoint argued before
 the Claims Court (1) that “the VA’s best value determina-
 tion and trade-off analysis were flawed” because the VA
 understated WellPoint’s relative cost savings in the Price
 factor; and (2) that “the VA treated offerors unequally
 when evaluating the solicitation’s Corporate Experi-
 ence/Capability Subfactor,” i.e., that the VA gave greater
 credit to OPSS, the winning bidder, for its overall corporate
 experience and capability than WellPoint, a losing bidder.
 J.A. 2.
     The parties filed cross-motions for judgment on the ad-
 ministrative record. The Claims Court rejected WellPoint’s
 argument as to the cost savings evaluations. The Claims
 Court also rejected WellPoint’s unequal treatment claim,
 finding that WellPoint had failed to demonstrate that the
 VA committed a prejudicial error because the SSA’s award
 decision did not reflect any unequal treatment, and that
 the SSA’s evaluation of the proposals was “reasonabl[e]”
 and “consistent with the requirements.” J.A. 19.
     The Claims Court concluded that “the VA conducted a
 reasonable evaluation, reasonably found that [OPSS] pre-
 sented the best value to the government, and that the VA
 made a sound decision to award the Contract to [OPSS],”
 denied WellPoint’s request for injunctive relief, and dis-
 missed the case. J.A. 23–24. WellPoint appeals, and we
 have jurisdiction under 28 U.S.C. § 1295(a)(3).
                         DISCUSSION
     We review the Claims Court’s assessment of agency ac-
 tions de novo under the standard set forth in the Adminis-
 trative Procedure Act (“APA”). Comint Sys. Corp. v. United
 States, 700 F.3d 1377, 1381 (Fed. Cir. 2012). Under that
 standard, an agency action must be set aside if it is “arbi-
 trary, capricious, an abuse of discretion, or otherwise not
 in accordance with law.” 5 U.S.C. § 706(2)(A). “[A] bid
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 6           WELLPOINT MILITARY CARE CORP. v. UNITED STATES




 award may be set aside if either: (1) the procurement offi-
 cial’s decision lacked a rational basis; or (2) the procure-
 ment procedure involved a violation of regulation or
 procedure.” Impresa Construzioni Geom. Domenico Garufi
 v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001). Im-
 portantly, the APA requires that “due account shall be
 taken of the rule of prejudicial error.” 5 U.S.C. § 706. “To
 prevail in a bid protest, a protestor must show a significant,
 prejudicial error in the procurement process.” Alfa Laval
 Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.
 Cir. 1999). We review the legal standard for prejudice ar-
 ticulated by the Claims Court de novo, and we review the
 Claims Court’s underlying factual findings for clear error.
 Bannum Inc. v. United States, 404 F.3d 1346, 1353–54
 (Fed. Cir. 2005).
                               I
     WellPoint’s first argument (relating to the cost savings
 calculation) boils down to an assertion that the VA commit-
 ted a mathematical error. The VA assigned WellPoint’s
 proposal a cumulative weighted score of 0.24398, meaning
 that WellPoint’s proposed prices were “about 24.398% less
 than what the Government expect[ed] to pay.” J.A. 2041.
 The VA assigned OPSS’s proposal a cumulative weighted
 score of 0.18968, which translated to prices “about 18.968%
 less than [what] the Government expect[ed] to pay.” Id.
 The SSA concluded that “WellPoint’s score represents . . .
 a 5.430% additional cost savings over what [OPSS] pro-
 posed,” i.e., that the absolute difference in savings between
 the two proposals was 5.430%. Id. WellPoint argues that
 the SSA was required to use the relative difference in sav-
 ings between WellPoint’s proposal and OPSS’s proposal:
 28.627%. But the methodology that WellPoint advances is
 merely a different way of describing the same comparison.
 The VA did not act irrationally by choosing one of two
 equivalent methodologies. Indeed, there is a third way of
 comparing the magnitude of the cost savings—by compar-
 ing the expected cost savings under WellPoint’s proposal
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 WELLPOINT MILITARY CARE CORP. v. UNITED STATES               7



 (said to be $134 million) to the overall contract price (said
 to be $2.47 billion). This comparison shows that it is the
 same 5.430% savings, additionally confirming reasonable-
 ness of the agency’s methodology.
     WellPoint also asserts that the SSA failed to recite the
 “true magnitude,” i.e., the dollar amount of the cost sav-
 ings, of each proposal. Appellant’s Br. 40. However, noth-
 ing in the Solicitation, the Federal Acquisition Regulation
 (“FAR”), or the Competition in Contracting Act of 1984, 41
 U.S.C. § 3306(c), requires the SSA to recite dollar amounts
 in an award decision, dollar amounts that were uncertain
 at the time of contract formation, given the indefinite-de-
 livery, indefinite-quantity nature of the contract.
     We conclude that the Claims Court correctly found that
 the “VA’s methodology for evaluating price in connection
 with this procurement was both reasonable and in accord-
 ance with the terms of the Solicitation.” J.A. 20.
                               II
                               A
     WellPoint next argues that the VA “treated WellPoint
 and OPSS disparately” when evaluating their proposals
 under the Corporate Experience/Capabilities subfactor.
 Appellant’s Br. 46. FAR § 1.602-2(b) requires SSAs to give
 “impartial, fair, and equitable treatment” to all govern-
 ment contractors. See Office Design Grp. v. United States,
 No. 19-1337, slip op. at 7 (Fed. Cir. 2020). This court has
 recently held that to demonstrate unequal treatment, “a
 protestor must show that the agency unreasonably down-
 graded its proposal for deficiencies that were ‘substantively
 indistinguishable’ or nearly identical [to] those contained
 in other proposals’” or that “the agency inconsistently ap-
 plied objective solicitation requirements between it and
 other offerors.” Id. at 7 (collecting cases). “To prevail, [the
 protestor] must show that [the] instance of unequal treat-
 ment was prejudicial.” Id. at 10. The Claims Court
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 8           WELLPOINT MILITARY CARE CORP. v. UNITED STATES




 rejected WellPoint’s unequal treatment claim, finding that
 WellPoint’s alleged error “did not prejudice WellPoint with
 regard[] to the VA’s award decision.” J.A. 18.
     The proposals here were evaluated by the VA utilizing
 a Source Selection Plan (“SSP”) approved by the SSA. 2 The
 SSP stated that the proposals were evaluated using a
 “three-tier approach [that] consist[ed] of a Source Selection
 Evaluation Board (SSEB), Source Selection Advisory
 Council (SSAC) and the Source Selection Authority (SSA).”
 J.A. 1935.
     The first tier of review was the SSEB. The SSEB con-
 sisted of a Chairperson, legal counsel, and four evaluation
 teams. The four evaluation teams corresponded to the four
 factors identified in the Solicitation: (1) the Technical Eval-
 uation Team (“TET”); (2) the Past Performance Evaluation
 Team; (3) the Socioeconomic Evaluation Team; and (4) the
 Price Evaluation Team. The SSEB’s report consisted of
 four individual reports prepared by the four separate eval-
 uation teams. We are concerned here with the TET report
 and particularly the portion of the report dealing with the
 Corporate Experience/Capability subfactor.
     The second tier of review was the SSAC. The SSAC
 consisted of a Chairperson, legal counsel, and three other
 members. The SSAC was responsible for reviewing the
 SSEB’s report “to ensure the evaluation process follow[ed]
 the evaluation criteria and the ratings [were] appropriately
 and consistently applied” and “consolidat[ing] the advice



     2   Although the SSP is an internal agency document
 that was not part of the Solicitation, WellPoint does not ar-
 gue that the SSP is inconsistent with the Solicitation or
 that VA has departed from the procedures set forth in the
 SSP. Both parties treat the SSP as governing, and we do
 as well. We consider the SSP in evaluating the rationality
 of the agency’s actions.
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 and recommendations . . . into a written comparative anal-
 ysis and recommendation” for the SSA. J.A. 1978. The
 SSAC had the authority to “add or remove a strength, sig-
 nificant weakness, omission or deficiency” assigned by the
 TET to “ensure [that] the evaluation process follow[ed] the
 evaluation criteria and that the ratings are appropriately
 and consistently applied.” J.A. 1979.
      The SSA was the final authority. The SSA “use[d] the
 factors established in the SSP and solicitation to make the
 source selection decision in accordance with FAR
 [§] 15.308.” J.A. 1943. FAR § 15.308 required that the SSA
 use his “independent judgment.” FAR § 15.308 (providing
 that “[w]hile the SSA may use reports and analyses pre-
 pared by others, the source selection decision shall repre-
 sent the SSA’s independent judgment”); see also J.A. 1943
 (explaining that the SSA was to make the final award de-
 cision under the SSP in accordance with FAR § 15.308).
 The SSA oversaw the procurement and selected the mem-
 bers of the selection team, i.e., SSAC and SSEB.
                              B
     WellPoint alleges that the TET report failed to appre-
 ciate the fact that OPSS (the successful bidder) was a dif-
 ferent entity from “the larger [OPSS] corporate family,”
 despite treating WellPoint (an unsuccessful bidder) as an
 entity distinct from its parent corporation, Anthem. Appel-
 lant’s Br. 20–21. WellPoint argues that the TET evaluated
 WellPoint’s proposal by focusing WellPoint “standing
 alone,” without subjecting OPSS’s proposal to the same
 level of scrutiny. Appellant’s Br. 47. WellPoint identifies
 three specific alleged errors in the TET’s report: (1) the
 TET’s statement that WellPoint had only three years of ex-
 perience in the healthcare industry and, “standing alone,
 [did] not have adequate corporate depth to manage a large,
 complex and comprehensive healthcare network,”
 J.A. 1265; (2) the TET’s focus on the fact that WellPoint
 “employ[ed] only 9 staff,” id.; and (3) the TET’s observation
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 10          WELLPOINT MILITARY CARE CORP. v. UNITED STATES




 that “[t]he fact that [WellPoint] plans to rely on an affiliate
 . . . increases the risk of unsuccessful performance,” id.,
 and “[t]he lack of detail of [WellPoint as] the prime [offeror]
 raise[d] questions regarding [WellPoint’s] background, and
 qualifications in managing a federal health care network of
 similar size or scope as the [Community Care Network]
 contract,” J.A. 1430.
     WellPoint asserts that the TET evaluation of OPSS’s
 proposal, unlike its evaluation of WellPoint’s proposal, did
 not focus on OPSS’s capabilities, “standing alone.” Well-
 Point argues that the TET credited OPSS with the back-
 ground, experience, and qualifications of its entire
 corporate family. For example, WellPoint points out that
 the TET credited OPSS with the corporate experience and
 capabilities of its parent corporation, UnitedHealth Group,
 which was “an organization with experience serving 134
 million individuals worldwide.” J.A. 1440.
     In short, WellPoint argues that the TET myopically fo-
 cused on WellPoint as an individual entity and failed to
 credit WellPoint for the strengths of the Anthem corporate
 family. WellPoint asserts that, in contrast, the TET’s eval-
 uation of OPSS’s proposal never criticized OPSS for its lim-
 ited individual capabilities, and credited OPSS with the
 full experience and capabilities of the Optum corporate
 family.
                               C
     Even if we were to accept WellPoint’s assertion that the
 TET report reflected unequal treatment, this would not es-
 tablish that the VA committed a prejudicial error. This is
 so because the TET’s findings were further reviewed by two
 more entities: the SSAC and the SSA.
     Because the SSA had the full authority to award the
 contract to WellPoint instead of OPSS, we need not be con-
 cerned with errors in the interim reports by the TET or
 SSAC unless they were carried forward to the SSA’s final
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 WELLPOINT MILITARY CARE CORP. v. UNITED STATES               11



 decision. In Shinseki v. Sanders, 556 U.S. 396 (2009), the
 Supreme Court explained that the prejudicial error inquiry
 under the APA involves the “same kind of ‘harmless-error’
 rule that courts ordinarily apply in civil cases.” Id. at 406.
 “[T]he factors that inform a reviewing court’s ‘harmless-er-
 ror’ determination are various, potentially involving,
 among other case-specific factors, an estimation of the like-
 lihood that the result would have been different [and] an
 awareness of what body . . . has the authority to reach that
 result . . . .” Sanders, 556 U.S. at 411. Under this stand-
 ard, an error in the TET report, standing alone, is not prej-
 udicial. “De minimis errors in the procurement process do
 not justify relief.” Office Design, No. 19-1337, slip op. at 10.
 To show prejudicial error, WellPoint must show a “substan-
 tial chance” that the SSA (the body with authority) would
 have made a different award decision but for the alleged
 error in the TET report. Id.; Info. Tech. & Applications
 Corp. v. United States, 316 F.3d 1312, 1319 (Fed. Cir.
 2003).
                                D
     WellPoint argues that the alleged errors in the TET re-
 port were in fact prejudicial because they were carried over
 to the SSA’s decision. WellPoint asserts that the alleged
 TET errors were reproduced in the SSAC’s comparative
 analysis, which was in turn relied upon by the SSA. Well-
 Point attempts to establish this connection by citing to por-
 tions of the SSAC’s comparative analysis document
 repeating the same alleged error that appeared in the TET
 report. However, WellPoint’s citation is not to the SSAC’s
 own analysis, but rather, its summary of the TET’s find-
 ings. WellPoint has not established error in the SSAC’s
 own analysis.
     The SSA’s decision document is also free of error. First,
 the SSA’s decision contains no citation or reference to the
 alleged errors in the TET report. WellPoint concedes in its
 briefing that the problematic language is not present in the
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 12          WELLPOINT MILITARY CARE CORP. v. UNITED STATES




 SSA’s award decision. Instead, the SSA’s decision reflected
 a reliance on other elements of the TET report, but not the
 alleged errors. The SSA’s decision statement noted that
 “selection was made based upon the factors established in
 the solicitation, [the SSA’s] review of the [SSAC] compara-
 tive analysis, the detailed evaluation results submitted by
 the [SSEB] . . . , and [the SSA’s] integrated assessment and
 comparison of the strengths, weaknesses, and risks of the
 proposals submitted in response to the solicitation.”
 J.A. 2029.
      Second, the SSA’s analysis of the Corporate Experi-
 ence/Capability subfactor considered the experience of both
 offerors. The very first paragraph of the SSA’s analysis
 identified “UnitedHealth Group [as] the parent organiza-
 tion of [OPSS],” demonstrating the SSA’s awareness of
 OPSS’s organizational structure. J.A. 2039. Similarly, the
 SSA’s summary of WellPoint’s general corporate back-
 ground acknowledged its parent company, Anthem. The
 SSA’s analysis considered OPSS’s affiliate, UnitedHealth
 Group, as having experience in pharmacy benefit manage-
 ment as “dat[ing] back to 1976,” and credited WellPoint
 with the experience and capabilities of Anthem Pharmacy
 Solutions, which has been in operation “since 1989.”
 J.A. 2039–40. The SSA also credited OPSS with the “30
 years’ experience managing . . . dental programs” of its af-
 filiate, UnitedHealth Group, and WellPoint with the “sig-
 nificant dental network management record [of] 45 years”
 of its affiliate, DeCare. Id. The SSA also observed that
 “[a]ll three offerors have provided existing networks in the
 states comprising Region 3.” J.A. 2041. Since WellPoint
 itself had no care network in Region 3, the SSA must nec-
 essarily have been contemplating the entire organization
 behind WellPoint, including its parents and affiliates.
     The SSA concluded that “[OPSS] . . . and WellPoint
 each have prior experience managing large healthcare con-
 tracts; however, Optum’s breadth, depth and diversity of
 its corporate experience will provide [the] VA with
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 WELLPOINT MILITARY CARE CORP. v. UNITED STATES                13



 guidance and expertise to fulfill its mission.” J.A. 2040.
 The SSA’s decision stated that “[OPSS]’s robust network
 and extensive corporate experience, . . . far exceed[ed] the
 other offerors,” and that “[OPSS]’s demonstrated corporate
 experience represents a clear competitive advantage over
 . . . WellPoint.” J.A. 2041.
     Finally and most significantly, the SSA’s award deci-
 sion stated that:
     As the SSA, I recognize that this decision is to re-
     flect[, as required by the FAR,] my own independ-
     ent, integrated, and comparative assessment. In
     this role, I understand that I am free to agree or
     disagree, based upon my assessment of the find-
     ings, with the recommendation of the SSAC.
 J.A. 2041 (emphasis added).
      We conclude there has been no showing that the al-
 leged errors in the TET were carried over to the SSA’s de-
 cision. Therefore, the Claims Court did not err when it
 found that “the VA reasonably evaluated the responsive
 proposals under the Solicitation’s Corporate Experi-
 ence/Capability Subfactor.” J.A. 19.
                                E
     Even if the TET’s error had been carried over to the
 SSA’s decision, WellPoint has not demonstrated that the
 SSA’s decision would have been different. As noted earlier,
 the Supreme Court explained in Sanders that the mere
 possibility of harm is insufficient to rise to the level of prej-
 udicial error. We have held that the appropriate standard
 is that the bid protestor must allege a “significant error”
 that affected the award decision. Alfa Laval, 175 F.3d at
 1368. WellPoint must show that “but for the error, it would
 have had a substantial chance of securing the contract.”
 CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358
 (Fed. Cir. 2018).
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 14          WELLPOINT MILITARY CARE CORP. v. UNITED STATES




     The Solicitation establishes that “[t]he non-price fac-
 tors . . . , when combined, [were] significantly more im-
 portant than [the] Price [factor].” J.A. 542. The other
 technical subfactors, “Network Management and Claims
 Adjudication” and “Management Approach,” were “both in-
 dividually . . . more importan[t] than [the Corporate Expe-
 rience/Capability] subfactor.” J.A. 541–42. The award
 decision shows that for the Network Management and
 Claims Adjudication subfactor, the SSA considered OPSS’s
 “thorough approach and . . . readily available network,
 which targets the areas with the VA’s greatest needs,” to
 be “a clear competitive advantage over . . . WellPoint.”
 J.A. 2038. For the Management Approach subfactor, the
 SSA noted that OPSS’s proposal offered “several call cen-
 ters in multiple locations” covering “all local time zones”
 within Region 3, while WellPoint’s proposal offered “two
 geographically separated call centers.” Id. The SSA found
 that OPSS’s proposal “indicated significant experience in
 call center operations,” while WellPoint’s proposal indi-
 cated that it was prepared to “scale up availability.”
 J.A. 2038–39. The SSA concluded that “although Well-
 Point provide[d] a viable proposal . . . there [were] no ad-
 vantages that separate[d] it from [OPSS].” J.A. 2042.
     In the circumstances of this case, WellPoint did not
 demonstrate that the Claims Court erred when it con-
 cluded that WellPoint would not would have had a “sub-
 stantial chance” of winning the contract, even if the SSA’s
 decision reflected the alleged error in the TET report, and
 even if WellPoint had been rated higher under the Corpo-
 rate Experience/Capability subfactor.
     Since WellPoint has not shown prejudice, there is no
 basis for setting aside the award based on the alleged une-
 qual treatment.
                        CONCLUSION
     WellPoint’s challenges to the award were properly re-
 jected by the Claims Court.
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                       AFFIRMED
