Motorola v. Procurement Policy Bd. , 2019 UT 66 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 66
IN THE
SUPREME COURT OF THE STATE OF UTAH
MOTOROLA SOLUTIONS, INC.,
Petitioner,
v.
UTAH COMMUNICATIONS AUTHORITY,
and HARRIS CORPORATION,
Respondents.
No. 20190283
Heard June 26, 2019
Filed November 1, 2019
On Petition for Review of Agency Decision1
Attorneys:
Christopher R. Hogle, Richard D. Flint, Christopher D. Mack,
Salt Lake City, for petitioner
Jason D. Boren, Jacey Skinner, Nathan R. Marigoni, Salt Lake City,
for respondent Utah Communications Authority
John R. Lund, J. Michael Bailey, Brandon J. Mark, Adam E.
Weinacker, Salt Lake City, for respondent Harris Corporation
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PETERSEN,
and JUDGE PARKER joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
DISTRICT COURT JUDGE PAUL PARKER sat.
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This petition comes to us on certification from the Utah Court of
1
Appeals.
MOTOROLA v. UCA
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 On June 27, 2019, we issued an order denying Petitioner
Motorola Solutions, Inc.’s Rule 17 Motion for Stay Pending Review.
We now explain our reasoning for denying the motion. In the
motion, Motorola asked us to stay further proceedings related to
Respondent Utah Communications Authority’s (UCA) efforts to hire
a private contractor to implement a new statewide emergency public
radio system. Specifically, Motorola requested the stay to stop UCA
from entering into a contract (for the purpose of implementing the
emergency radio system) with Respondent Harris Corporation until
Motorola’s appeal protesting UCA’s decision to award that contract
had been resolved. UCA and Harris argued, however, that
Motorola’s motion for a stay was moot. We agreed.
¶2 UCA and Harris argued that Motorola’s motion for a stay
was moot because UCA’s executive director had already entered into
a contract with Harris. In response, Motorola did not dispute that
Harris and the UCA executive director had signed a contract.
Instead, Motorola argued that no contract could be formed until the
UCA board had approved it. Because we concluded that the UCA
executive director had authority to enter into contracts on UCA’s
behalf, we held that Motorola’s motion requesting a stay was moot.
For this reason, we denied the motion.
BACKGROUND
¶3 In 2018, UCA sought proposed bids for the implementation
of a statewide public safety emergency radio system. After
considering the proposed bids, including bids from Motorola and
Harris, UCA announced it had accepted Harris’s bid and would
therefore begin contract negotiations with Harris.
¶4 Motorola challenged UCA’s decision by lodging three
protests, based on alleged violations of various Utah Procurement
Code2 provisions, with a designated protest officer. All three protests
were denied. Motorola appealed the denial of these protests to the
Utah Procurement Policy Board, which subsequently affirmed the
denials. Motorola then appealed the Policy Board’s decision to the
Utah Court of Appeals.
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2 UTAH CODE §§ 63G-6a-101 to -2407.
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Opinion of the Court
¶5 Under the Procurement Code, the lodging of a protest
automatically stays all procurement proceedings until all
administrative and judicial remedies are exhausted.3 But the
Procurement Code also allows a procurement unit—in this case,
UCA—to lift the stay where the head of the procurement unit
(1) consults with the unit’s attorney and (2) “makes a written
determination that award of the contract without delay is necessary
to protect the best interest of the procurement unit or the state.”4
Using the authority granted in the Procurement Code, UCA’s acting
executive director lifted the automatic stay four days after Motorola
appealed the Policy Board’s decision. Motorola did not appeal the
executive director’s decision to lift the stay.
¶6 After the stay was lifted, Motorola filed a motion for a
judicial stay pending the resolution of Motorola’s appeal. After
Motorola filed this motion, but before the court of appeals ruled on
it, UCA and Harris signed the contract for the implementation of the
state’s emergency radio system. Four days later, the court of appeals
issued a temporary stay on “all further proceedings” until it resolved
Motorola’s motion to stay.
¶7 In response to the court of appeals’ temporary stay, and
because UCA and Harris had already entered into a contract, UCA
filed a “suggestion of mootness.” Additionally, Harris filed a motion
for emergency relief from the temporary stay. The court of appeals
then certified this case to us. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(b).
ANALYSIS
¶8 Motorola argued that we should grant a stay under rule 17
of the Utah Rules of Appellate Procedure. Harris and UCA raised a
number of arguments in opposition to Motorola’s motion.
¶9 Harris argued that Motorola’s stay should be denied
because (1) the motion was moot, (2) the Procurement Code did not
give this court the authority to review UCA’s decision to lift the stay,
(3) even if we had authority to review UCA’s decision, Motorola
failed to show that UCA’s decision was reversible, and (4) Motorola
invoked the wrong standard for relief under rule 17. And UCA
argued that we should deny Motorola’s motion because (1) we
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3 Id. § 63G-6a-1903.
4 Id. § 63G-6a-1903(2).
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Opinion of the Court
lacked jurisdiction to grant the requested relief, (2) rule 17 does not
authorize review of UCA’s decision to lift the Procurement Code’s
automatic stay, and (3) Motorola’s motion failed on its merits.5
Because we concluded that UCA and Harris entered into a contract
after UCA lifted the automatic stay, but before the court of appeals
issued its temporary, judicial stay, we held that Motorola’s motion
for a stay was moot.6
¶10 A motion becomes moot when “the controversy is
eliminated, thereby rendering the relief requested impossible or of
no legal effect.”7 With its motion, Motorola sought a stay preventing
UCA and Harris from entering into a contract.8 So, if UCA and
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5 Harris’s second and third arguments, and UCA’s second
argument, assumed that Motorola’s rule 17 motion constituted a
request to review UCA’s decision to lift the Procurement Code’s
automatic stay. But, under rule 17, a party may request a stay of an
administrative agency’s proceedings in two situations: (1) where
application to the agency “in the first instance . . . is not practicable”
or (2) where application has been made to the agency, but the agency
denied the application and provided reasons for the denial.
Although Harris assumed Motorola’s request for a stay fell within
the second situation, Motorola suggested—by arguing that an
application to UCA was “not practicable”—that its stay requests fell
within the first situation. Because we denied Motorola’s motion on
mootness grounds, we did not determine which portion of rule 17
applies in this case or whether it would authorize the relief
requested.
6Because we denied the motion on mootness grounds, we do not
address the parties’ other arguments.
7 Teamsters Local 222 v. Utah Transit Auth., 2018 UT 33, ¶ 9, 424
P.3d 892 (citation omitted).
8 Motorola sought to prevent UCA from entering into a contract
with Harris because the Procurement Code significantly limits the
relief Motorola could receive, were it to succeed in the underlying
appeal, once a contract has been awarded. For example, section 1909
of the Procurement Code states that if, “before award of a contract, it is
determined . . . a procurement or proposed award of a contract is in
violation of law, the procurement or proposed award shall be
cancelled or revised to comply with the law.” UTAH CODE
§ 63G-6a-1909 (emphasis added). Section 1907, on the other hand,
(Continued)
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Opinion of the Court
Harris had already entered into a contract, we would be unable to
grant the relief Motorola requested and Motorola’s motion would be
moot.
¶11 We concluded that UCA and Harris had already entered
into a contract. On June 7, 2019—four days before the court of
appeals issued its temporary stay—UCA’s executive director
executed a contract with Harris. Motorola did not contest this.
Instead, Motorola argued that the UCA director’s signature was
insufficient to form a contract because “UCA’s enabling statute and
its bylaws require UCA board approval of proposed contracts.”
After considering UCA’s enabling statute and bylaws, we disagreed.
¶12 UCA’s enabling statute does not require UCA board
approval of contracts entered into by UCA’s executive director.
Motorola pointed to Utah Code section 63H-7a-204(11), a provision
in UCA’s enabling statute, to argue that the enabling statute requires
the UCA board to authorize the execution of each agreement signed
on behalf of UCA. But that is not what section 63H-7a-204(11)
requires. The provision states that the UCA board “shall
. . . authorize the executive director to enter into agreements on behalf
of the authority.”9 In contrast to Motorola’s interpretation of this
provision, we read it as requiring the UCA board to grant the
states that if, “after award of a contract it is determined . . . a
procurement or award of a contract is in violation of law,” the
contract may nevertheless “be ratified and affirmed if it is in the best
interests of the procurement unit.” Id. § 63G-6a-1907 (emphasis
added). So, if UCA and Harris had not yet entered into a contract, a
successful protest by Motorola would have automatically resulted in
the cancellation or revision of the proposed award to Harris. But, if
the contract had been entered into, then UCA could nevertheless
have ratified and affirmed the contract it executed with Harris so
long as UCA concluded doing so was in its best interests.
We also note that, in their briefing before us, the parties assumed
that it is the entering into of a contract that constitutes an “award”
under the Procurement Code. Yet the phrase “before the award of a
contract” could be read to refer to an earlier step in the procurement
process. Because the parties have argued assuming that the phrase
refers to the act of entering into a contract, and our analysis would
not change if the award took place at an earlier date, we assumed,
for this appeal, that a contract award occurs when it is entered into.
9 Id. § 63H-7a-204(11) (emphases added).
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Opinion of the Court
executive director general authority to enter into future agreements
on behalf of UCA.
¶13 This reading is suggested by the provision’s framing. First,
the provision is framed prospectively. By using the verb phrase “to
enter into agreements”—rather than a verb phrase such as “approve
agreements” or “confirm agreements”—the provision suggests that
the board must grant contract-making authority to the executive
director before the director executes the agreement. Second, by
referring to “agreements” in the plural form, the provision suggests
that the UCA board is required to grant general contract-making
authority to the executive director, rather than on a case-by-case
basis.
¶14 And this reading is consistent with another provision in
UCA’s enabling statute. Section 63H-7a-205 specifically discusses the
authority of the executive director. In subsection (4) of this section, it
states that the executive director “shall . . . execute contracts on
behalf of the authority.” So this subsection specifically authorizes the
executive director to execute contracts on behalf of UCA.
¶15 We also note that even though some of the subsections in
section 63H-7a-205 require the executive director to receive “board
approval” before acting (or limit the executive director’s role to
making recommendations “to the board”), subsection (4) confers
authority to “execute contracts” without any reference to the board.
This suggests that once the board has granted general
contract-making authority to the executive director, under section
63H-7a-204(11), the executive director need not receive additional
approval from the board on a contract-by-contract basis.
Accordingly, we read UCA’s enabling statute as authorizing UCA’s
executive director to enter into a valid contract with Harris.
¶16 UCA’s bylaws further support our conclusion. Section 5 of
article II of UCA’s bylaws states that the board “shall have all power,
to the fullest extent possible, granted to it by the Act.”10 So the
bylaws specifically limit the board’s authority to what is described in
the enabling statute.
¶17 The bylaws then list a number of the board’s specific
powers, including the power to “authorize contracts and other
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10 UTAH COMMC’NS. AUTH., BYLAWS 4 (2014),
http://uca911.org/images/docs/UCA_Approved_Bylaws.pdf.
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Opinion of the Court
instruments on behalf of the UCA.”11 Motorola pointed to this
provision to argue that a contract cannot be formed without board
approval. But this provision does not prohibit the executive director
from entering into valid contracts. In fact, section 3.1.8 of article III of
UCA’s bylaws specifically authorizes the executive director to “sign
and make all contracts and agreements in the name of the UCA.”12
So UCA’s bylaws are consistent with UCA’s enabling statute in that
they grant the executive director authority to enter into agreements
on behalf of UCA.
¶18 In sum, because UCA’s enabling statute and bylaws
authorize UCA’s executive director to enter into agreements on
behalf of UCA, the executive director’s June 7, 2019 contract with
Harris was valid. Accordingly, the event Motorola sought to prevent
with its stay motion had already occurred, and Motorola’s motion
was moot. Accordingly, we denied Motorola’s motion.
CONCLUSION
¶19 On June 27, 2019 we denied Motorola’s rule 17 Motion For
Stay Pending Review. We did so because it was moot.13
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11 Id. 5.
12 Id. 8.
13 After we issued our order denying Motorola’s motion, the
parties submitted a stipulated motion for voluntary dismissal of the
underlying appeal, which we granted.
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