492 P.3d 784
Utah Ct. App.2021Background
- Utah enacted the Utah Medical Cannabis Act and UDAF issued an RFP (July 2019) to award up to ten cannabis cultivation licenses; the RFP initially required Utah residency but was later changed to permit non-resident applicants.
- JLPR, a Utah LLC with four Utah-resident members, submitted a timely application; the Committee evaluated 81 applications based solely on written submissions and awarded eight licenses (four in-state, four out-of-state); JLPR was not selected.
- JLPR filed an administrative protest alleging the RFP was rushed/unduly restrictive, the Committee was biased in favor of out-of-state applicants, scoring was inconsistent/miscalculated, and errors produced an improper score; the protest included no exhibits.
- The procurement protest officer dismissed JLPR’s protest as untimely (for certain RFP challenges) and for lack of factual evidence on bias and scoring; the Procurement Policy Board affirmed.
- On judicial review JLPR attached numerous new documents (emails, affidavit, redacted applications, and an auditor’s report) that were not part of the administrative protest record; the court held it could not consider materials outside the administrative record except for one Award Justification Statement the agency acknowledged belonged in the file.
- Reviewing only the administrative record, the court concluded JLPR failed to show the Board’s decision was arbitrary, capricious, or clearly erroneous and therefore denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may consider new evidence attached to JLPR’s appellate briefs that was not before the protest officer or Board | JLPR argued the documents (emails, affidavit, audit report, redacted applications) were newly discovered and the agency’s record was incomplete, so the court should consider them | Respondents argued review is limited to the administrative record transmitted from the protest officer to the Board and the parties may not bypass record‑supplementation procedures | Court held it may not consider those documents; review limited to the administrative record (with one concessionary Award Justification Statement included) |
| Timeliness / RFP unduly restrictive or anticompetitive | JLPR said the RFP was rushed, last‑minute changes (residency rule) created confusion and were unduly restrictive/anticompetitive | Respondents and protest officer said process challenges must be raised before the bid deadline; JLPR did not timely protest those aspects | Board’s dismissal on timeliness not meaningfully challenged on appeal; court declined to disturb it (JLPR failed to rebut the lower decision) |
| Alleged bias toward out‑of‑state applicants by the evaluation committee | JLPR pointed to the statistic that 4 of 8 awardees were out‑of‑state and argued the midstream change favored non‑residents | Respondents said the awards reflected objective criteria (business experience etc.) and that disparate award percentages do not, without more, show bias | Court held numerical disparity alone was insufficient; no facts in the administrative record established bias, so dismissal was not arbitrary or clearly erroneous |
| Incorrect or inconsistent application/calculation of scoring and error by evaluation committee | JLPR argued evaluator score variability and scoring inconsistencies show misapplication or miscalculation and that JLPR was improperly scored lower | Respondents and protest officer noted independent evaluator judgment will produce differing scores and rules preclude protestors from simply claiming they should have had higher scores absent factual proof | Court held variable scores are expected and JLPR produced no evidence of scoring error; administrative rules preclude vague/unsubstantiated claims that a bidder should have received more points |
Key Cases Cited
- Grant v. Herbert, 449 P.3d 122 (Utah 2019) (context on state statutory replacement of voter initiative)
- Layton City v. Carr, 336 P.3d 587 (Utah Ct. App. 2014) (issues raised first on appeal are decided in the first instance)
- State v. MacNeill, 380 P.3d 60 (Utah Ct. App. 2016) (appellate review limited to the record on appeal)
- Oliver v. Utah Labor Comm’n, 424 P.3d 22 (Utah 2017) (reviewing courts limited to administrative record)
- In re Anderson, 82 P.3d 1134 (Utah 2004) (matters dispositive to an agency decision must be presented first to the agency)
- Staker v. Town of Springdale, 481 P.3d 1044 (Utah Ct. App. 2020) (agency decisions must be supported by substantial evidence)
- Brown v. State, 308 P.3d 486 (Utah 2013) ("clearly erroneous" standard for factual findings)