Gag clause flagged. 25 of 100 weight is excluded as unclear or redacted. Scoring notes
Clause-by-clause evidence
FID · Weight 7 of 100
Fiduciary duty and loyalty
Contradicts the model
From the published record
A&M System acknowledges and agrees that, except for the limited purpose set forth in Section 2.3(c) of this Exhibit G, neither it nor the Plan intends for ESI to be a fiduciary (as defined under ERISA or state law) of the Plan
Why this verdict
All five models reached this verdict. Section 4.2 of the scope of services exhibit has the A&M System agree that Express Scripts is not a fiduciary of the plan under ERISA or state law, that it has no discretionary authority over the benefit, and that the financial terms were negotiated at arm's length. The only fiduciary role Express Scripts accepts is for handling an appeal, on page 114. The same page reserves the right to stop serving any plan in a state that requires a pharmacy benefit manager to be a fiduciary, which is the opposite of the duty of loyalty in the model contract published by Mark Cuban and collaborators.
Compare with the model contract · § Section 2.4
The PBM owes duties of loyalty and care solely to the plan and its members, must disclose all direct and indirect compensation and every economic conflict, and must disgorge anything retained in breach without the plan proving damages.
Without a loyalty duty the PBM is free to put its own affiliates and revenue ahead of the plan when it exercises discretion over formularies, networks and pricing.
Independent council readings 5 published readings
Only readings under the score’s rubric version are shown here. Model confidence and agreement do not establish legal correctness.
Claude Opus 5Contradicts the model
The scope of services exhibit has the plan sponsor agree in advance that Express Scripts is not a fiduciary of the plan and has no discretionary authority, and the parties recite that they dealt at arm's length. The only fiduciary duty Express Scripts accepts is for its handling of an appeal. Express Scripts also reserves the right to stop serving any plan located in a state that would require a pharmacy benefit manager to be a fiduciary. The model contract published by Mark Cuban and collaborators does the opposite and puts a duty of loyalty to the plan and its members at the center, so this is the clearest contradiction in the document.
A&M System acknowledges and agrees that, except for the limited purpose set forth in Section 2.3(c) of this Exhibit
G, neither it nor the Plan intends for ESI to be a fiduciary (as defined under ERISA or state law) of the Plan
Page 115 · Rubric v2
Gemini 3.1 ProContradicts the model
The contract explicitly disclaims fiduciary duty, stating that ESI acts as an independent contractor and that neither the plan nor the sponsor intends for ESI to be a plan fiduciary, leaving ESI free to act in its own interest.
A&M System acknowledges and agrees that, except for the limited purpose set forth in Section 2.3(c) of this Exhibit G, neither it nor the Plan intends for ESI to be a fiduciary
Page 115 · Rubric v2
GPT 5.6 SolContradicts the model
The contract expressly rejects fiduciary status except for the narrow appeals function. It also describes the economic bargain as arm's length and lets ESI act for itself, not solely for the plan and members. This directly contradicts the loyalty and care obligation in the model.
A&M System acknowledges and agrees that, except for the limited purpose set forth in Section 2.3(c) of this Exhibit G, neither it nor the Plan intends for ESI to be a fiduciary (as defined under ERISA or state law) of the Plan
Page 115 · Rubric v2
Grok 4.6Contradicts the model
Exhibit G section 4.2 says the parties negotiated in an arm's length fashion and that A&M does not intend ESI to be a fiduciary under ERISA or state law, except for a narrow appeals role. ESI also reserves the right to stop serving any plan in a state that would require a PBM to be a fiduciary. The model contract from Mark Cuban and collaborators requires a duty of loyalty and care solely to the plan and its members. This clause is written to prevent that duty.
neither it nor the Plan intends for ESI to be a fiduciary (as defined under ERISA or state law) of the Plan
Page 115 · Rubric v2
Kimi K3Contradicts the model
Section 4.2 of Exhibit G is an express fiduciary disclaimer negotiated in what the contract calls an arm's length fashion, and the same page reserves ESI's right to stop services in any state that would require a PBM to act as a fiduciary. The only fiduciary acceptance anywhere is ESI's narrow agreement, for appeals work only, to accept fiduciary status with respect to the performance of an appeal. The model contract from Mark Cuban and collaborators instead asks the PBM to owe loyalty and care solely to the plan and to disgorge anything retained in breach. This contract is an explicit statement of the opposite posture.
A&M System acknowledges and agrees that, except for the limited purpose set forth in Section 2.3(c) of this Exhibit G, neither it nor the Plan intends for ESI to be a fiduciary (as defined under ERISA or state law) of the Plan
Page 115 · Rubric v2
Finding provenance
Finding ID
bdca72f8-b3bc-4c3b-a11b-7c612595b3b3
Reviewed
Sep 30, 2026
Reviewer
owner
Recorded confidence
0.98
Model votes
Kimi K3: bad; Grok 4.6: bad; GPT 5.6 Sol: bad; Claude Opus 5: bad; Gemini 3.1 Pro: bad
Published reports 3 write-ups
Published Sep 30, 2026
Good news, bad news: the short version
Good news
The A&M System can walk away without cause on ninety (90) days written notice, and no termination fee appears in the readable text (page 5).
Every amendment must be in writing and signed by both parties (page 5), and Express Scripts agrees not to revise the Exhibit C pricing terms during the term unless the law requires it or both sides agree in writing (page 2).
The Texas State Auditor may audit the contract, and the System gets one claims audit a year at no additional cost over a rolling 24 months (page 3).
Records, reports and data generated specifically for the A&M System belong to the System and must be delivered on request when the contract ends (page 4).
Express Scripts may not sell or take anything of value for personally identifiable member data (page 12), and the sponsor keeps final say over whether any claim is covered (page 113).
If Express Scripts is acquired or merges, the System may terminate immediately (page 6).
Bad news
The System agrees that Express Scripts is not a fiduciary of the plan, and the vendor may stop serving any plan in a state that requires a pharmacy benefit manager to be one (page 115).
Express Scripts and its affiliates keep all beneficial interest in the manufacturer and affiliate revenue described in a Financial Disclosure that sits in the unproduced proposal; the plan is owed only what the contract expressly states, and the vendor negotiates that revenue on its own behalf (page 115).
The services exhibit has Express Scripts promote its own mail pharmacy to members and lets it migrate the plan between networks (page 112).
The MAC list is whatever Express Scripts develops or selects (page 111), brand versus generic status comes from its proprietary algorithm (page 110), and the specialty product list is maintained by the vendor (page 112).
The formulary can be changed by the vendor for reasons that include manufacturer rebate arrangements, with changes adopted unless the System opts out (page 110).
The auditor must be approved by Express Scripts and may not be a competitor or provide litigation services against it (page 3). A rebate audit reaches only fifty percent (50%) of rebate payments for two quarters, contracts are viewed on site with no copies, and the vendor may review the auditor's notes (page 127).
Express Scripts keeps 15% of overpayments it recovers from network pharmacies on the plan's claims (page 4).
Anonymized claims data, rebate contracts and drug pricing information are treated as vendor property (page 8).
Vaccine claims are excluded from every pricing and rebate guarantee (page 29).
Exhibit F designates the pricing exhibit, the specialty exhibit and the clarifications as confidential and exempt from the Texas Public Information Act (page 109).
What we could not see
Exhibit D, specialty drugs under the mail order pharmacy program, is blacked out in full from page 54 to page 106. Exhibit C, the program pricing terms on pages 21 to 53, survives only as headings, so every discount, dispensing fee, rebate amount, administrative fee and performance guarantee is hidden. Seven definitions on pages 110 to 112 are individually blacked out, as are page 107, page 136 and the insurance limits on pages 14 and 15. The proposal and clarifications are on file with the System and not produced (page 1). Six rubric items worth 25 weight points could not be scored.
The number
The reconciled score is 20 out of 100, a Red flag grade, on a scored weight of 75 with 25 excluded as unclear, and the gag flag is raised. Two items earned full credit worth 4 points and five partial items added 11, so (4 + 11) divided by 75 gives 20. The change that would move the number most is the pass through item, worth 11 points: a promise that one hundred percent of manufacturer revenue reaches the plan would lift the numerator to 26 and the score to 26 divided by 75, about 34.7. The redactions are the other lever: releasing Exhibits C and D would bring 25 more weight points into the score and show whether the hidden terms help or hurt.
Request a signed agreement, later amendments, incorporated proposals or any missing exhibits as needed. A full-contract label does not confirm that the posted copy is signed.
The reference is the open source PBM contract published by Mark Cuban and collaborators, version 3.5. BetterBuy Rx did not write it and is not affiliated with or endorsed by its authors. Read the original model contract.