JLPR v. Department of Agriculture and Food , 2021 UT App 52 ( 2021 )

2021 UT App 52THE UTAH COURT OF APPEALS
JLPR LLC,
Petitioner,
v.
PROCUREMENT POLICY BOARD, DEPARTMENT OF AGRICULTURE AND
FOOD, AND DIVISION OF PURCHASING AND GENERAL SERVICES,
Respondents.
Opinion
No. 20190798-CA
Filed May 13, 2021
Original Proceeding in this Court
Jason M. Kerr and Steven W. Garff,
Attorneys for Petitioner
Sean D. Reyes, Paul H. Tonks, and Brent Burnett,
Attorneys for Respondents
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred. 1
HARRIS, Judge:
¶1 After a law was passed legalizing medical marijuana in
Utah, the Utah Department of Agriculture and Food (UDAF)
invited applications for a limited number of medical cannabis
cultivator licenses. JLPR LLC (JLPR) applied for one of the
licenses, but UDAF awarded the licenses to others. JLPR
appealed UDAF’s decision first to a protest officer (Officer), and
next to the Utah Procurement Policy Board (Board), each of
which rejected JLPR’s appeal. JLPR now seeks judicial review of
the Board’s decision, and after review we decline to disturb it.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
JLPR v. Dep’t of Agriculture and Food
BACKGROUND
¶2 In November 2018, Utah voters approved a citizen
initiative legalizing medical marijuana. In a special legislative
session held just a few weeks after the election, the Utah
Legislature “replaced the initiative with its own statute.”
See Grant v. Herbert, 2019 UT 42, ¶ 1, 449 P.3d 122. The new
law, known as the Utah Medical Cannabis Act (the Act),
included details for implementing a medical marijuana
market in Utah. See Act of Dec. 3, 2018, ch. 1, §§ 1–141, 2018
Utah Laws 3rd Spec. Sess. 3, 3–89. The Act authorized UDAF
to issue as many as ten licenses to businesses wishing
“to operate a cannabis cultivation facility.” See Utah Code
Ann. § 4-41a-205(1) (LexisNexis Supp. 2019). As originally
enacted, the Act also provided that the process of awarding
licenses would be governed by the Utah Procurement Code, id.
§ 4-41a-201(2)(a), and that UDAF’s “authority to issue a license
under this section [was] plenary and . . . not subject to review,”
other than as provided in the procurement code, id. § 4-41a-
201(12).
¶3 At some point in late May or early June 2019, UDAF
issued a Request for Proposals (RFP) seeking applications
from vendors interested in obtaining a medical cannabis
business license. If applicants demonstrated that they met
certain threshold requirements set forth in the Act, see id.
§ 4-41a-201(2)(b), they advanced to a “technical criteria
evaluation stage” in which they were evaluated by a six-
member UDAF evaluation committee (Committee) based
on additional criteria. These additional criteria are also set
forth in the Act, and include an applicant’s business
experience, the soundness of its “operating plan,” an applicant’s
“positive connections to the local community,” and its
demonstrated ability to “reduce the cost [of the product] to
patients.” See id. § 4-41a-205(3). Applications were due by July 1,
2019.
20190798-CA 2 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
¶4 When the RFP was first released, it indicated that
each applicant needed to be “a resident of the State of Utah.” But
in late June 2019, shortly before the July 1 deadline, UDAF
changed that requirement and indicated that it would accept
applications from individuals and entities that were not Utah
residents.
¶5 JLPR is a Utah-based limited liability company with four
members, all of whom are Utah residents. JLPR was aware of the
initial requirement that license applicants be Utah residents, and
asserts that it “carefully structured” the formation of its entity
“around this requirement.” JLPR’s four members collectively
had “over 150 years of successful business experience and
expertise” in various endeavors, including “a large brine shrimp
operation on the Great Salt Lake,” a “large scale ranching”
operation in south-central Utah, a “Utah based railroad,” and
other “restaurant and hospitality businesses in Utah.” JLPR
purported to be financially sound, with “significant earned
capital” and the ability to “fully self-finance all cannabis
operations,” including cultivation. On or about July 1, 2019, JLPR
submitted a timely application for one of the available cannabis
business licenses.
¶6 Over the ensuing weeks, the Committee analyzed the
eighty-one applications that had been timely submitted,
including JLPR’s. Three of the applications were rejected for
failing to meet the minimum statutory requirements, and an
additional forty-five of them failed to “meet the required
minimum technical scores” as outlined in the RFP. The
remaining thirty-three applications that met all minimum
thresholds, including JLPR’s, were then evaluated more closely
by the Committee, which met to “discuss[]” those applications
and to “determine who was the most qualified based on the
contents of their submission as outlined in [the] RFP.” The
Committee conducted its evaluation entirely on the applicants’
written submissions; it did not provide applicants the
20190798-CA 3 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
opportunity to interview with or otherwise appear in person
before the Committee.
¶7 On July 19, 2019, UDAF announced that it had awarded
cannabis licenses to eight businesses, four of which were Utah-
based businesses and four of which were not. JLPR was not
chosen to receive a license. According to UDAF’s “Award
Justification Statement,” “[t]he proposals with the highest total
scores received the awards,” and JLPR did not have one of the
eight highest total scores.
¶8 JLPR appealed the denial of its application by filing a
“formal protest” letter with the Officer, according to the
requirements set forth in the procurement code. See Utah Code
Ann. § 63G-6a-1602(1), (2) (LexisNexis Supp. 2019). In its three-
page protest letter, which was submitted without any
attachments or exhibits, JLPR challenged UDAF’s decision on
four grounds. First, it took aim at the RFP process itself,
asserting that it was “rushed and incomplete,” and had therefore
been “unduly restrictive” and “anticompetitive.” In particular, it
criticized UDAF for allowing applicants “less than a month” to
submit “complete application[s],” and for not conducting
“interviews, phone calls or other methods” whereby the
Committee “could really get to know the applicants.” And it
complained about the criteria change “at the very end of the
process” that allowed non-residents to apply. Second, JLPR
claimed that there had been “bias” on the part of the Committee,
although the only bias it identified was a “bias toward out-of-
state applicants.” Third, it alleged that UDAF had failed to
“correctly apply or calculate the scoring criteria,” and asserted
that this was evidenced by “[s]coring inconsistencies” among the
six members of the Committee. Finally, it claimed that the
Committee made “[e]rrors,” asserting generally that JLPR was
“the ideal candidate” for a cannabis license and should have
received more points than those who were ultimately awarded
licenses. As its requested remedy, JLPR asked “to schedule a
20190798-CA 4 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
mutually convenient time to discuss its scores and the unique
abilities and qualifications of its members” and “to provide
supplement[al] information.”
¶9 Less than a week later, after reviewing JLPR’s protest
letter, the RFP, the “contents of the solicitation file,” and various
statutory provisions and administrative rules, the Officer
rejected JLPR’s protest. He dismissed JLPR’s challenge to the
particulars of the RFP process on timeliness grounds,
determining that, under the procurement code, any challenges to
the bid process must be filed prior to the application deadline.
(Citing id. § 63G-6a-1602(2).) And he dismissed the remainder of
JLPR’s challenges for lack of evidence. Specifically, he
determined that JLPR failed to provide “any facts or evidence
that demonstrate a bias.” He also determined that JLPR had not
submitted any evidence of scoring inconsistencies, noting that “it
is common for evaluators to not have the exact same score for
each criterion because of their independent judgment.” And he
determined that, under the procurement code, “a protestor
cannot claim it should have received more points or a competitor
should have received fewer points.” (Citing Utah Admin. Code
R33-16-101a.)
¶10 One week after that, JLPR appealed the Officer’s decision
to the Board. JLPR’s initial submission to the Board was a four-
page letter similar to the one it had previously submitted to the
Officer; in the letter, it made the same four arguments, and again
did not attach any exhibits or other evidence. Just over a month
later, after learning the identities of the three Board members
appointed to the administrative appeals panel, JLPR submitted a
second letter addressed to those members individually, again
without attachments or exhibits. In this second appeal letter,
JLPR again touted its business experience and connection to the
community, and asserted that it should have been awarded a
license. This time, however, JLPR noted that, since the licenses
had been awarded, it had “engaged in initial and somewhat
20190798-CA 5 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
considerable due diligence into each of the permitted licensees,”
and hinted that it had found “significant conflicts of interest
and political ties” that it believed had “driven many if not all
of the selection outcomes,” and asserted that “the selection
process was based upon who you are and who you know
rather than if you are truly capable and qualified” to run a
cannabis business. But JLPR provided no specific information to
support these allegations, stating merely that it was “prepared if
needed to disclose all the information [it had] discovered thus
far.” 2 And once again, JLPR indicated that its requested remedy
was “a meeting with the appropriate decision maker(s),
including, but not limited to . . . the Lieutenant Governor, the
Governor, Bi-Partisan State Senators, Representatives,
Legislators, Oversight Committees and the Attorney General to
discuss [its] qualifications” for a cannabis license. At the end of
the letter, JLPR indicated that it had blind-copied the letter to
unnamed “[p]otential [i]nterested [p]arties” who in its “opinion
[could] and [would] add value to an amicable resolution” of the
matter.
¶11 After determining that a hearing was “unnecessary,” the
Board sustained the Officer’s decision. In a three-page written
ruling, the Board determined that JLPR had “failed to provide
any facts or evidence in support of its claims,” and therefore
concluded that the Officer’s decision “was not arbitrary and
capricious” or clearly erroneous.
2. As noted below, see infra note 8, the only specific piece of new
information in this regard that JLPR included in its second letter
was a statement that it had learned that one member of the
Board’s appeals panel was an attorney at a law firm that
represented one of the successful licensees. But JLPR did not
request any specific action as a result of this discovery; it did not,
for instance, ask the Board member in question to recuse himself.
20190798-CA 6 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
¶12 JLPR now seeks judicial review of the Board’s decision. In
its briefs submitted to this court, JLPR continues to press the
same issues it raised with the Officer and the Board. But in
addition to those issues, JLPR attempts to raise a number of new
issues that it did not bring to the attention of the Officer or the
Board. After filing its petition for review with this court, JLPR
made several public records requests, pursuant to Utah’s
Government Records Access and Management Act (GRAMA),
see generally Utah Code Ann. § 63G-2-201 (Supp. 2019), seeking
documents associated with the cannabis license bid process. In
addition, JLPR became aware of an audit report (Audit Report),
released in 2020, in which the Utah State Auditor’s Office
described the conclusions it had reached following an inspection
of UDAF. JLPR’s appellate briefs were accompanied by
seventeen attachments; almost none of the information
contained in these attachments was in the administrative record
submitted to the Officer and to the Board. Included in the
attachments are emails among UDAF employees, and between
UDAF employees and cannabis license applicants; an affidavit
from an investigator; redacted versions of some of the successful
awardees’ applications; news articles regarding some of the
successful awardees; and a full copy of the Audit Report.
¶13 These attachments, according to JLPR, provide evidence
to support its allegations that the bid process was flawed and
that the decisionmakers were biased and had conflicts of
interest. For instance, some of the emails indicated that UDAF
employees informally met with some of the applicants during
the open application period. Another document was a sworn
declaration containing assertions that one of the successful
licensees hired the former deputy commissioner of UDAF—who
left UDAF in May 2019, just days before the application period
opened—and paid him a six-figure contingent fee to help the
company obtain a license. And the Audit Report expressed
“concerns about certain factors and conditions” relating to the
entire bid process “that call into question the independence of
20190798-CA 7 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
the process.” In particular, the Audit Report highlighted a
possible “[l]ack of [s]coring [i]ndependence” among the
members of the Committee, as well as questionable scoring
“adjustments . . . made to the raw score[s] of” all but the highest-
ranking Committee members. The Audit Report noted that such
scoring idiosyncrasies “are considered unusual and could
indicate an attempt by senior management to influence other
[Committee] members.” In the end, the Audit Report
recommended that UDAF “[i]mplement blind evaluations” and
“reassess the licenses awarded.”
ISSUES AND STANDARDS OF REVIEW
¶14 Two issues require our attention in this petition for
review. First, we must determine whether we are able to
consider the new materials JLPR has attached to its briefs and
which were not part of the protest appeal record before the
Officer and the Board. Because this issue arises for the first time
here on review, our decision is not governed by any standard of
review, and we decide the matter as a question of law in the first
instance. Cf. Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d
587 (stating that when an issue is raised for the first time on
appeal, “there is no lower court ruling to review” and we must
decide the question in the first instance as a matter of law).
¶15 Second, we address the merits of the Board’s decision to
dismiss JLPR’s protest. In this context, we will disturb the
Board’s decision only if it was “arbitrary and capricious or
clearly erroneous.” Utah Code Ann. § 63G-6a-1802(4)(c)
(LexisNexis 2019). An agency’s decision is arbitrary and
capricious only if “it is not supported by substantial evidence in
the record.” See Staker v. Town of Springdale, 2020 UT App 174,
¶ 24, 481 P.3d 1044 (quotation simplified); see also Bradley v.
Payson City Corp., 2003 UT 16, ¶¶ 10, 23, 70 P.3d 47. And a
decision is supported by substantial evidence if—after
“consider[ing] all the evidence in the record, both favorable and
20190798-CA 8 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
contrary”—we determine that “a reasonable mind could reach
the same conclusion” as the administrative decisionmaker. See
Staker, 2020 UT App 174, ¶ 24 (quotation simplified). Similarly,
we will not consider the Board’s decision to be clearly erroneous
unless it conflicts with the record evidence or we are firmly
convinced that “a mistake has been made.” 3 See Brown v. State,
2013 UT 42, ¶ 37, 308 P.3d 486 (quotation simplified). JLPR bears
the burden of demonstrating entitlement to relief in this court.
See Utah Code Ann. § 63G-6a-1602(4) (Supp. 2019); see also Salt
Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62,
¶ 59, 435 P.3d 179 (“In general, the law has long assigned the
burden of proof to the petitioner, plaintiff, or appellant.”).
ANALYSIS
I
¶16 Before turning to the merits of JLPR’s petition for review,
we must first determine whether we can consider the new
materials that JLPR attached to its briefs but which were not part
of the administrative record or submitted to the Officer or the
Board. For the reasons set forth, we determine that we cannot
consider those materials in the context of this petition.
3. The term “clearly erroneous,” as used in Utah Code section
63G-6a-1802(4)(c) (LexisNexis 2019), is not defined by statute
and, as far as we are aware, has not been separately defined by
Utah appellate courts in the administrative context. Accordingly,
we employ the definition of that term as it is applied in other
civil and criminal appeals. See, e.g., Brady v. Park, 2019 UT 16,
¶ 72, 445 P.3d 395 (applying clear error to civil court factual
findings); Brown v. State, 2013 UT 42, ¶ 37, 308 P.3d 486(applying “clear error” to criminal post-conviction court’s factual
findings); State ex rel. Z.D., 2006 UT 54, ¶ 40, 147 P.3d 401(applying “clear error” to juvenile court factual findings).
20190798-CA 9 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
¶17 Utah’s procurement code—which governs JLPR’s petition
for review 4—allows a losing applicant for a state contract to
challenge a denial by filing a protest with a designated protest
officer. See Utah Code Ann. § 63G-6a-1602(1) (LexisNexis 2019).
Such a protest must include “a concise statement of the facts and
evidence . . . providing the grounds for the . . . protest,” and
“may not be considered unless it includes facts and evidence”
establishing one of the statutory grounds for a protest. Id. § 63G-
6a-1602(4)(a), (b).
¶18 If a protest officer denies a protest, an applicant may
appeal that decision to the Board; upon the filing of an appeal,
the applicant’s “protest appeal record” is transmitted to the
Board. See id. § 63G-6a-1702(2)(a), (5)(a). The “protest appeal
record,” by statutory definition, consists of the following items:
the protest officer’s decision; “all documentation and other
evidence the protest officer relied upon in reaching the protest
officer’s decision”; 5 if the protest officer held a hearing, a
4. As noted, at the time of JLPR’s application for a cannabis
license, the process was governed by Utah’s procurement code.
See Utah Code Ann. § 4-41a-201(2)(a) (LexisNexis Supp. 2019).
However, a subsequent statutory change made clear that future
cannabis license applications are not to be governed by the
procurement code. See id. § 4-41a-201(2)(a)(i) (Supp. 2021).
5. It is worth noting that the universe of materials considered by
the Officer in reviewing JLPR’s protest is not necessarily—and,
indeed, is almost certainly not—the same as the universe of
materials considered by the Committee in selecting the eight
awardees. Contrary to JLPR’s implications, it was neither the
Officer’s nor the Board’s burden, during the protest process, to
seek out materials that might have been considered by the
Committee; rather, it was JLPR’s burden to bring materials
(continued…)
20190798-CA 10 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
recording of that hearing; “a copy of the [applicant’s] written
protest”; and “all documentation and other evidence submitted”
by the applicant. Id. §§ 63G-6a-1601.5(3), -1701.5(2). Notably,
applicants may not base their arguments to the Board on any
“new or additional evidence not considered by the protest
officer,” and the Board “may not . . . take any additional
evidence.” Id. § 63G-6a-1702(3)(b), (6)(b). Indeed, in appeals
where the protest officer held no hearing, the Board’s decision
must be based solely on “the notice of appeal and the protest
appeal record.” Id. § 63G-6a-1702(7)(a).
¶19 Finally, if the applicant receives an adverse decision from
the Board, the applicant may petition for review in this court. Id.
§ 63G-6a-1802(1)(b). By statutory mandate, we review such
petitions “as an appellate court” and “may not hear the matter as
a trial de novo.” Id. § 63G-6a-1802(4)(a), (b). “An appellate
court’s review is limited to the evidence contained in the record
on appeal.” State v. MacNeill, 2016 UT App 177, ¶ 41, 380 P.3d 60(quotation simplified). And this is true even in instances where
we are asked to review an administrative agency’s decision. See
Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 57, 424 P.3d 22 (“In
appeals from formal administrative adjudications, reviewing
courts are limited to the administrative record before them.”); see
also In re Anderson, 2004 UT 7, ¶ 47, 82 P.3d 1134 (explaining that
we “review [administrative] actions as an appeal” and “never
take additional evidence” because “matters that may be
dispositive” must “be presented in the first instance to the
agency, so that it may consider them at the time of reaching its
decision,” and stating that “[f]ailure to do so . . . is usually a bar
to later consideration”). In administrative appeals, our appellate
rules define the record on appeal as “all papers in the agency
(…continued)
supporting its protest to the Officer’s attention. See id. § 63G-6a-
1602(4) (LexisNexis 2019).
20190798-CA 11 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
file.” See Utah R. App. P. 11(d)(3). In the context of this case, that
includes the “protest appeal record” transmitted from the Officer
to the Board, all documents or memoranda submitted by the
parties to the Board, and a copy of the Board’s decision. See Utah
Code Ann. §§ 63G-6a-1601.5(3), -1701.5(2).
¶20 If a lower court or administrative agency neglects to
include matters in the record on appeal that should have been
included, litigants may seek to supplement the record on
appeal. See Utah R. App. P. 11(h). But parties may not
simply attach new documents to their appellate briefs without
first obtaining permission to supplement the record on
appeal. See State v. Pliego, 1999 UT 8, ¶ 7, 974 P.2d 279(“[A]lthough the record may be supplemented if anything
material is omitted, it may not be done by simply including the
omitted material in the party’s addendum.”); see also Olson v.
Park-Craig-Olson, Inc., 815 P.2d 1356, 1359 (Utah Ct. App. 1991)
(explaining that rule 11 “establishes a procedure for
supplementing the record” but the rule is not a means “to
introduce new material into the record”).
¶21 When JLPR submitted its initial protest letter, it did not
include exhibits or attachments supporting its arguments,
despite bearing the burden to provide facts and evidence
supporting its claims. See Utah Code Ann. § 63G-6a-1602(4). As a
result, the “protest appeal record” transmitted to the Board
when JLPR mounted its administrative appeal did not contain
most of the materials JLPR now attaches to its appellate briefs;
instead, the “protest appeal record” contained only JLPR’s three-
page protest letter and the Officer’s decision. 6 See id. §§ 63G-6a-
6. The “protest appeal record” transmitted to the Board should
have included the “contents of the solicitation file” that the
Officer reviewed in reaching his decision. Indeed, at oral
argument before this court, UDAF acknowledged as much. But
(continued…)
20190798-CA 12 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
1601.5(3), -1702(7). And, as noted, the Board is statutorily
forbidden from considering materials outside the “protest
appeal record.” See id. § 63G-6a-1702(7). In the end, the entire
administrative record submitted to this court as the record on
appeal consists of just twenty-nine pages: JLPR’s initial protest
letter, the Officer’s decision, JLPR’s two appeal letters to the
Board, and the Board’s decision.
¶22 While acknowledging that most of the exhibits attached to
its appellate briefs are not part of the “official record,” JLPR
nevertheless asks us to review the new materials on the ground
that they were “not available and could not have been
discovered prior to the appeal deadline,” and it faults UDAF for
failing to include these new materials “in its self-created record.”
But the record we may consider on review is strictly limited to
the materials considered by the Officer and the Board. See id.
§§ 63G-6a-1702(3)(b), (6)(b), (7), -1701.5(2), -1802; see also Utah R.
App. P. 11(d)(3). That record consists of the twenty-nine pages
(…continued)
JLPR did not file a motion to supplement the record to add the
“contents of the solicitation file,” and therefore our knowledge of
what was in that file is limited. At oral argument, UDAF agreed
that, at a minimum, that file would have included a copy of
UDAF’s Award Justification Statement, the document setting
forth the identity of the eight successful applicants and all the
applicants’ relative scores. Given this concession, we consider
the Award Justification Statement—attached as Addendum F to
JLPR’s opening brief—to be part of the record on appeal, and a
document that we may properly consider. But given the lack of
any formal motion to supplement the record, we have no reason
to believe that the Officer or the Board considered any of the
other new documents attached to JLPR’s briefs; as discussed
herein, those documents are not part of the record on appeal and
we may not consider them.
20190798-CA 13 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
submitted to us by the agency, and the one document that UDAF
now agrees should have been included in that record but was
not. See supra note 6. We are thus limited in our review to the
matters included in that record. See MacNeill, 2016 UT App 177,
¶ 41 (stating that our “review is limited to evidence contained in
the record on appeal” (quotation simplified)).
¶23 Accordingly, apart from the one exception noted, the new
materials attached to JLPR’s briefs are not part of the record on
appeal, and we are not permitted to consider them in our review
of the Board’s decision.
II
¶24 Without those materials, JLPR cannot carry its burden of
demonstrating that the Board’s decision was arbitrary and
capricious or clearly erroneous. The procurement code provides
six grounds upon which a protestor may object to an agency’s
decision, provided there exists “facts and evidence” to support
the objections. See Utah Code Ann. § 63G-6a-1602(4)(b). JLPR
raised four of these grounds in its protest, and we address each
in turn. 7
7. JLPR also attempts to raise new issues that were not argued
before the Officer or the Board and that are based on the new
materials not part of the record on appeal. Such issues are
unpreserved for our review. See Salt Lake City Corp. v. Jordan
River Restoration Network, 2018 UT 62, ¶ 37, 435 P.3d 179 (“Issues
not raised in proceedings before administrative agencies are not
subject to judicial review except in exceptional circumstances.”
(quotation simplified)). And JLPR has not persuaded us that any
of the exceptions to our preservation doctrines apply here. See
generally State v. Johnson, 2017 UT 76, ¶¶ 19–39, 416 P.3d 443(recognizing and clarifying the three “exceptions to preservation:
plain error, ineffective assistance of counsel, and exceptional
(continued…)
20190798-CA 14 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
¶25 First, JLPR raised certain complaints about the structure
of the RFP process. See id. § 63G-6a-1602(4)(b)(vi) (allowing
applicants to protest where “specifications in a solicitation are
unduly restrictive or unduly anticompetitive”). In particular,
JLPR asserted that the application process was “extremely
rushed” and that late changes made to the requirements
regarding eligibility of out-of-state applicants “created
confusion” and “did not provide adequate time for applicants to
adapt.” The Officer dismissed these complaints as untimely,
citing section 63G-6a-1602(2) of the Utah Code and offering his
view that, under the procurement code, “a person may not
protest the procurement process after the deadline for
submitting responses to solicitation.” The Board affirmed the
Officer’s decision. Before this court, JLPR does not engage with
the reasoning of the Officer and the Board, and offers no
argument that dismissal of its first set of complaints on
untimeliness grounds was improper. Accordingly, JLPR has not
carried its burden of appellate persuasion on this point, and we
decline to disturb the Board’s decision on this basis alone,
without offering any opinion as to the correctness of the
timeliness ruling on its merits. See Allen v. Allen, 2021 UT App
20, ¶ 35, 483 P.3d 730 (declining to address an issue on the merits
because the petitioner had “left the [lower] court’s basis for its
decision unaddressed” and therefore “ha[d] not carried his
burden to show error” regarding that decision).
¶26 Second, JLPR claimed that the Committee exhibited “bias
toward out-of-state applicants.” See Utah Code Ann. § 63G-6a-
1602(4)(b)(iv) (allowing applicants to protest where there exists
“a bias exercised by an evaluation committee or an individual
committee member, excluding a bias that is a preference arising
(…continued)
circumstances”). Accordingly, we limit our review to the four
grounds JLPR raised in its original protest.
20190798-CA 15 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
during the evaluation process because of how well a solicitation
response meets criteria in the solicitation”). In support, JLPR
pointed to the fact that “4 of the 8 (50%) out-of-state applicants
received a license,” while “only 4 of the 73 (.05%) [sic] in-state
applicants received a license.” In its letter to the Board, JLPR
stated that it “does not believe that members of the [Committee]
were personally or intentionally biased,” 8 but offered its view
that a bias in favor of out-of-state applicants was “inherent in the
[s]olicitation process” after UDAF altered the requirements
midstream. As an initial matter, to the extent this complaint goes
to the structure of the solicitation process itself, it fails for the
reason just stated. See supra ¶ 25. Moreover, the Officer and the
Board rejected this claim on its merits for lack of evidence, and
JLPR has not demonstrated that the Board’s decision was
arbitrary and capricious, or clearly erroneous, based on the
record before the Board. The numerical data regarding the
identities of the winning applicants was the sole piece of
evidence JLPR offered in support of its bias claim, and that data
alone cannot sustain a valid claim of bias. As JLPR
acknowledges, given that medical marijuana was illegal in Utah
prior to 2018, many of the out-of-state applicants had more
relevant business experience than the in-state applicants. There
could have been any number of valid reasons why UDAF
8. In its second letter to the Board, JLPR noted, as though in
passing, that one of the members of the Board’s appeals panel
was employed by a law firm that also represented one of the
winning applicants. JLPR referred to that issue as “a minor
example” of a “conflict[] of interest” but did not assert that the
Board member in question was biased as a result, and did not
ask that Board member to recuse himself. More to the point, the
Board member in question was not a member of the Committee;
at no point during the administrative proceedings before the
Officer or the Board did JLPR accuse any member of the
Committee of being specifically or individually biased.
20190798-CA 16 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
selected a higher percentage of the out-of-state applicants than
the in-state applicants, and to the extent any “bias” was based on
the criteria set forth in the RFP (for example, business
experience), it would not have been improper. See Utah Code
Ann. § 63G-6a-1602(4)(b)(iv) (stating that a valid protest for bias
cannot be grounded in a complaint that there was “a preference”
for “how well a solicitation response meets criteria in the
solicitation”). In short, based on the materials submitted to the
Board, we cannot say that its decision to reject JLPR’s claim of
bias was arbitrary and capricious, or clearly erroneous.
¶27 Third, JLPR complained that the “scoring criteria w[ere]
not applied correctly or consistently.” See id. § 63G-6a-
1602(4)(b)(v) (allowing applicants to protest where there is “a
failure to correctly apply or calculate a scoring criterion”). But
the only evidence JLPR offered in support of this contention was
that the evaluators’ individual scores varied a great deal from
one another.9 As the Officer correctly explained, Utah’s
administrative code requires Committee members “to exercise
independent judgment in a manner that is not dependent on
anyone else’s opinions or wishes.” See Utah Admin. Code R33-7-
705(1)(a). We agree with the Officer’s assessment that, in the
course of the Committee’s work, “it is common for evaluators to
not have the exact same score for each criterion because of their
independent judgment.” Variable scoring is expected and not
per se improper. Thus, the presence of variable scoring among
the six members of the Committee does not, on its own, show
9. After reviewing the Audit Report, which found evidence of
the opposite problem—that evaluators had changed their scores
to bring them more into line with UDAF senior management—
JLPR changed tack on this issue. After initially arguing, in its
first brief filed with this court, that the scores were
“inconsistent,” JLPR argued in its reply brief that the Committee
members’ scoring had not been variable enough.
20190798-CA 17 2021 UT App 52JLPR v. Dep’t of Agriculture and Food
impropriety. Because JLPR supported this third claim with no
other evidence, the Board’s decision to dismiss it was not
arbitrary and capricious, or clearly erroneous.
¶28 Finally, JLPR claimed that all of the identified errors and
infirmities in the process caused the Committee to give JLPR too
low a score and some of its competitors too high a score. See
Utah Code Ann. § 63G-6a-1602(4)(b)(iii) (allowing an applicant
to protest “an error made by an evaluation committee”). The
Officer dismissed this claim based on administrative rules that
disallow protests based on “vague or unsubstantiated claims or
allegations” that “the protestor should have received a higher
score” or that “another vendor should have received a lower
score.” See Utah Admin. Code R33-16-101a(2)(c)(ii)(A), (B). The
Board affirmed the dismissal, and JLPR does not engage with the
reasoning of either the Officer or the Board. Accordingly, JLPR
has not demonstrated that the administrative dismissal of this
claim was arbitrary and capricious, or clearly erroneous.
CONCLUSION
¶29 In evaluating the Board’s decision to dismiss JLPR’s
protest, we are limited in our review to the record on appeal: the
materials submitted to and considered by the Officer and the
Board in rendering the administrative decision at issue. JLPR’s
attempt to attach to its briefs new material not contained in the
administrative record was improper, and we may not consider
that material. And when we consider the Board’s decision in
light of the record it had at its disposal at the time it rendered
that decision, we cannot say that its decision was arbitrary and
capricious, or clearly erroneous. Accordingly, we decline to
disturb the Board’s decision dismissing JLPR’s protest.
20190798-CA 18 2021 UT App 52