Avertest, LLC v. Procurement Policy Board

2024 UT App 66

THE UTAH COURT OF APPEALS

AVERTEST, LLC,
Petitioner,
v.
PROCUREMENT POLICY BOARD, DEPARTMENT OF HUMAN SERVICES,
DIVISION OF CHILD AND FAMILY SERVICES, SHAD BRUNSON,
SPENCER HALL, MARK ANDERSON, ALISON MCCOY, AND
CHRISTOPHER JENNINGS,
Respondents.

Opinion
No. 20220388-CA
Filed May 9, 2024

Original Proceeding in this Court

Walter A. Romney Jr., Trenton L. Lowe, and
E. Barney Gesas, Attorneys for Petitioner
Sean D. Reyes, Stephen W. Geary, and Erin T.
Middleton, Attorneys for Respondents Procurement
Policy Board, Department of Human Services, and
Division of Child and Family Services.

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 For several years, Avertest, LLC, dba Averhealth
(Avertest) provided drug and alcohol testing services to clients of
the Utah Division of Child and Family Services (DCFS), a division
within the Utah Department of Human Services (the
Department). When the Department solicited bidders in 2021 to
provide these services under a new contract, Avertest submitted
a bid, but its proposal was rejected as non-responsive. Avertest
unsuccessfully protested the decision first to a protest officer
(Officer) and then to the Utah Procurement Policy Board (the
Avertest v. Procurement Board

Board), each of which rejected Avertest’s arguments. Avertest
now seeks judicial review of the Board’s decision, and after
review, we decline to disturb it.

BACKGROUND

¶2 In late 2021, the Department issued a request for proposals
(the RFP) to enter into a five-year contract with a single service
provider to provide drug and alcohol testing services to DCFS
clients.

The RFP Requirements and Process

¶3 The RFP process consisted of three mandatory stages of
evaluation for all applicants: an initial review, a technical
proposal evaluation, and a final cost proposal evaluation.

¶4 The initial review stage set a threshold six “mandatory
minimum requirements” for continuing to the technical
proposal evaluation stage. If a proposal met the initial
review requirements, the proposal would then be evaluated on
five technical criteria: (1) the number of collection sites included
in the proposal, (2) the hours of operation proposed at these sites,
(3) the turn-around time for test results, (4) the availability of
qualified staff to testify in court proceedings, and (5) the
organization’s LGBTQ+ policy related to observing sample
collection. These five technical criteria were scored by
independent evaluators, whose scores were averaged and then
multiplied by each criteria’s assigned “weight” to create a total
score for each proposal out of 85 possible points. A proposal
needed to score a minimum of 51 points to proceed to the final
cost proposal evaluation stage.

¶5 Four service providers submitted proposals in response to
the RFP. Of these proposals, only three survived the initial review
stage by meeting the minimum qualifications to be further

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considered under the technical proposal evaluation: Avertest, the
incumbent provider since 2018; Beechtree Diagnostics, LLP
(Beechtree); and Physician Services, Inc. (PSI).

¶6 The proposals submitted by Avertest, Beechtree, and PSI
were then each evaluated and scored on the five technical criteria.
While both Beechtree and PSI received total scores above the 51-
point threshold (60.5 and 65.8, respectively), Avertest received a
total score of 50.25—having received the lowest score among the
proposals for multiple criteria—and was not allowed to proceed
to the final cost proposal evaluation stage. In the final stage of the
RFP process, Beechtree received a superior rating for cost
effectiveness when compared to PSI and was thus awarded the
contract.

¶7 Following the award of the DCFS contract to Beechtree,
Avertest formally protested the evaluation committee’s decision
to Officer, alleging that the scoring process failed to comply with
the RFP requirements and incorrectly scored the technical criteria.
See generally Utah Code § 63G-6a-1602(4)(b) (“A protest may not
be considered unless it contains facts and evidence that, if true,
would establish . . . the procurement unit’s failure to follow a
provision of a solicitation . . . [or] a failure to correctly apply or
calculate a scoring criterion.”). Specifically, Avertest argued that
it received an inappropriately low technical score because of the
evaluation committee’s failure to follow the RFP scoring rubric
and that this failure to correctly score Avertest’s proposal caused
it to be wrongly excluded from the final cost proposal evaluation
stage of the RFP process.

¶8 After reviewing Avertest’s protest, Officer issued a notice
of decision (the Protest Decision) denying Avertest’s protest and
determining that each of Avertest’s contentions was
unpersuasive. As set forth below, the Protest Decision explained
in detail why each of Avertest’s arguments failed.

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First Criteria

¶9 “The first technical criteria in the RFP [was]: ‘Number of
collection sites meeting [scope of work] criteria and the ability to
cover the required geographical areas. Higher scores will be given
to vendors with more locations.’” Avertest received a lower score
on this criteria than Beechtree, as Avertest proposed ten fewer
collection sites than Beechtree. Avertest protested the lower score,
alleging five reasons its proposal should have been scored more
favorably:

(1) “the evaluation committee should have performed due
diligence into the winning proposal’s sites,”

(2) “two of the collection sites in the winning proposal are
not operational,”

(3) “three of the sites listed by the winning proposal
‘appear[ed] to be located at private residences,’”

(4) the winning proposal made “misrepresentations,” and

(5) “all [but one] of the sites listed in the winning proposal
. . . are operated by other entities.”

¶10 Officer addressed each of Avertest’s challenges regarding
the number of collection sites score, explaining that:

(1) “[t]here is no requirement in the Procurement Code,
associated administrative rules, or the RFP that an
evaluation committee must investigate each claim a vendor
makes in a proposal” but instead, such is “at the discretion
of the evaluation committee”;

(2) vendors were not prohibited from including future sites
in their proposals, and in fact it “is common practice” for
offerors to make proposals that include future facilities, as

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requiring them to “obtain facilities prior to a contract
award would stifle competition”;

(3) “[n]either the RFP nor the scope of work prohibit
private residences” from being listed as collection sites, and
even if “private residences [were] not acceptable” in the
past, Utah Code section 63G-6a-707(4) prohibits committee
members “from evaluating proposals with criteria not
described in the RFP”;

(4) “each proposal is scored against the evaluation criteria,
not against other proposals” and even if the committee
were to have disqualified five of Beechtree’s locations, it
would still have more locations than Avertest; and

(5) even if it was true that all but one of Beechtree’s
proposed sites were operated by other entities, “this has no
bearing on [Avertest’s] score and does not remedy
[Avertest’s] failure to achieve the minimum score
threshold.”

Second Criteria

¶11 “The second technical criteria in the RFP [was]: ‘Hours of
operation. Higher scores will be given to proposals with the
greatest availability of hours including early morning and late
night hours.’” Avertest and Beechtree received the same score on
this criteria. Avertest protested this score, alleging three separate
reasons its proposal should have been scored more favorably,
namely:

(1) “its proposal [was] ‘inexplicably scored lower’ than the
winning proposal,”

(2) “its proposal should have received a score higher . . .
due to its hours of operations,” and

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(3) “the evaluation committee cannot give weight to a
statement in the winning proposal that hours ‘can be
adjusted as needed.’”

¶12 Officer addressed each of Avertest’s challenges regarding
the hours-of-operation score, explaining:

(1) Avertest wrongly “assume[d] that it received a lower
score than the winning proposal on this criteria. . . .
[Avertest] has not submitted a GRAMA request for the
detailed score sheets . . . . Had [Avertest] . . . requested
the detailed score sheets, it would have learned that its
proposal received the same score as the winning
vendor’s proposal for this category”;

(2) “[f]or subjective criteria, there is no formula that
dictates how an evaluation committee member must
weigh the information in a proposal. . . . There are a
multitude of rational reasons an evaluator might have
scored the way they scored, including for example, lack
of early morning hours at key sites, lack of late hours at
key sites, and a limited number of sites. . . . It is noted
that no proposals scored [higher than Avertest] for this
criteria”; and

(3) “[t]here is no law nor requirement of the RFP that
would prohibit evaluation committee members from
giving weight to such an assertion made in a proposal.
. . . Evaluation committee members have the duty and
discretion to weigh all statements in a proposal and
score accordingly.”

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Avertest v. Procurement Board

Fourth Criteria 1

¶13 “The fourth technical criteria in the RFP [was]: ‘Qualified
staff available to testify in court. Higher scores will be given to
staff availability with higher qualifications.’” Avertest scored
lower than Beechtree on this criteria. Avertest’s proposal
identified only two staff members available to testify, along with
their qualifications, and Avertest did not list the qualifications of
its area managers. Avertest protested this score, arguing its
proposal should have been scored more favorably because
Avertest’s “staff who are available to testify in court are more
highly qualified than the staff identified in the winning proposal.”

¶14 Officer addressed Avertest’s challenge to the qualified staff
score it received, explaining:

[Avertest’s] proposal does not list the qualifications
of the area managers. . . . Like the other subjective
evaluation criteria, the evaluation committee
members have discretion as to how to weigh
information in proposals. There are many reasons
why an evaluator may have scored the way they
scored. The lack of credentials for the area managers
alone would provide a rational basis for [the score
received].

Fifth Criteria

¶15 “The fifth technical criteria in the RFP [was]: ‘Policy related
to LGBTQ+ observed collection. Higher scores will be given to
trauma-informed policies.’” Avertest challenged its score on this
criteria, wrongly assuming that Beechtree received a higher score
and arguing Avertest’s proposal should have been scored more
favorably: “[Avertest] was penalized for its policy that is in no

1. Avertest’s protest contained no complaints with the scoring of
the third criteria, we therefore move directly to the fourth criteria.

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Avertest v. Procurement Board

way inferior to that proffered by Beechtree, which presumably
received a higher score based on their overall 10.2-point increase
over [Avertest’s] overall score.” In reality, Avertest scored higher
than Beechtree did on this criteria. Officer addressed Avertest’s
challenge to its LGBTQ+ policy score, explaining why it could
have received a lower score than it desired, despite scoring higher
than Beechtree did:

Utah Administrative Code R33-7-705(1)(a) states:
“Evaluators are required to exercise independent
judgment in a manner that is not dependent on
anyone else’s opinions or wishes.” [Avertest’s]
entire policy for this criteria was 182 words, roughly
1/2 page (the highest scoring proposal in this
category had 4 1/2 pages of material on this criteria).
There are multiple rational reasons an evaluation
committee member may have given a lower score,
including the lack of detail in [Avertest’s] policy.

Avertest Appeals to the Board

¶16 Less than a week after Officer issued the Protest Decision,
Avertest appealed that decision to the Board. See generally Utah
Code § 63G-6a-1602(1), (2). Avertest offered essentially the same
grounds for error that it raised before Officer and also argued that
Officer arbitrarily and capriciously or erroneously denied its
protest.

¶17 In response to Avertest’s appeal, the Board arranged for a
three member panel to consider the appeal. The Board upheld the
Protest Decision, directly addressing Avertest’s arguments on the
collection sites criteria and the overall contention that Avertest’s
proposal provided the best value. The Board rejected Avertest’s
claim that the evaluation committee “failed to conduct any due
diligence into whether [the collection] sites meet the Scope of
Work’s requirements or DCFS’s strict regulations as to collection
sites” because such a requirement created an “unworkable and

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unwieldy” standard for the committee. The Board also addressed
Avertest’s argument that its proposal provided the best value,
noting that this was essentially an argument that Avertest should
have received a higher technical score. The Board concluded that
Avertest failed to demonstrate that the Protest Decision was
arbitrary and capricious or clearly erroneous.

¶18 Avertest now seeks judicial review of the Board’s decision.

ISSUE AND STANDARD OF REVIEW

¶19 The issue before us is whether the Board’s affirmance of the
Protest Decision rejecting Avertest’s protest was arbitrary and
capricious or clearly erroneous.

¶20 We “may not overturn a finding, dismissal, or decision” of
the Board unless it “is arbitrary and capricious or clearly
erroneous.” See Utah Code § 63G-6a-1802(4)(c); see also ICS Corr.,
Inc. v. Utah Procurement Policy Board, 2022 UT 24, ¶ 15, 513 P.3d
677. An agency’s decision is arbitrary and capricious 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). And where this court perceives that “a
reasonable mind could reach the same conclusion” as the
administrative decision-maker after “consider[ing] all the
evidence in the record, both favorable and contrary” to the
decision, there is “substantial evidence in the record” to support
the decision. Id. (quotation simplified). Similarly, we will not
consider the Board’s decision to be clearly erroneous unless it
is against the clear weight of the evidence, or we are
firmly convinced that a mistake has been made. See JLPR LLC v.
Utah Procurement Policy Board, 2021 UT App 52, ¶ 15, 492 P.3d 784.

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Avertest v. Procurement Board

ANALYSIS

¶21 The Board both adequately addressed Avertest’s
arguments and there was a reasonable basis for the Board’s
decision. Because we determine that the Board’s decision to
uphold the Protest Decision was not arbitrary and capricious,
we must affirm the Board’s decision to uphold the Protest
Decision.

I. The Board Adequately Addressed Avertest’s Arguments

¶22 Avertest argues that the Board failed to address Avertest’s
contentions—that the evaluation committee erred in scoring
multiple criteria in Avertest’s proposal—when the Board upheld
the Protest Decision. Avertest asserts that this failure renders the
Board’s decision arbitrary and capricious. In its appeal to the
Board, Avertest argued first that it should have received a higher
score on multiple technical criteria, namely, (a) the collection sites
criteria, because the evaluation committee should have done due
diligence and investigated the feasibility of all thirty-two
collection sites included in Beechtree’s proposal; (b) the hours of
operation criteria, because Avertest’s proposal offered more
morning and late evening hours for collection than Beechtree’s
proposal offered; (c) the qualified expert criteria, because Avertest
has one more PhD on staff than Beechtree; and (d) the LGBTQ+
inclusive policy criteria, because Avertest “embraces the key
principles of trauma-informed care.” Second, Avertest argued
that, had it received a score higher than the 51-point threshold and
been included in the final cost proposal evaluation stage, Avertest
would have been awarded the DCFS contract because it had the
most cost effective proposal among those submitted to the
evaluation committee.

¶23 The protest appeal decision issued by the Board was sparse
and it certainly could have included more analysis. However,
although there is no express adoption of the Protest Decision
apparent in the Board’s decision (which would certainly have

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been preferable), we infer such an adoption here because (1) from
the face of its order, the Board clearly reviewed the record,
Avertest’s arguments in its protest, and the Protest Decision and
(2) after doing so, the Board expressly agreed with Officer’s
overall conclusion that there were “multiple rational reasons an
evaluation committee member may have given [Avertest] a lower
score.” Through its implicit adoption of the Protest Decision,
which thoroughly addressed each of Avertest’s contentions, the
Board adequately addressed Avertest’s arguments.

II. There Was a Reasonable Basis for the Board’s Decision

¶24 As we have already acknowledged, we view the Board’s
decision as implicitly adopting the Protest Decision. And, as we
will discuss in greater detail, the Protect Decision and the record
before this court include substantial evidence that is adequate to
convince a reasonable mind of the Board’s decision. See Utah Ass’n
of Counties v. Tax Comm’n, 895 P.2d 819, 821 (Utah 1995)
(“Substantial evidence [is] that quantum and quality of relevant
evidence that is adequate to convince a reasonable mind to
support a conclusion. . . . We defer to [a lower tribunal’s] findings
because, when reasonably conflicting views arise, it is the [fact-
finder’s] province to draw inferences and resolve these conflicts.”
(quotation simplified)).

¶25 To begin, the Board may “appoint a procurement appeals
panel to conduct an administrative review of any claim in the
appeal that has not been dismissed.” Utah Code § 63G-6a-
1702(5)(b)(ii)(B). Where a procurement appeals panel is convened,
the panel “shall uphold the protest decision unless the protest
decision is arbitrary and capricious or clearly erroneous.” Id.
§ 63G-6a-1702(8)(b). This same standard applies at the appellate
level of review. See id. § 63G-6a-1802(4)(c) (“The Utah Court of
Appeals . . . may not overturn a finding, dismissal, or decision
unless the finding, dismissal, or decision, is arbitrary and
capricious or clearly erroneous.”).

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Avertest v. Procurement Board

¶26 Avertest’s burden before the Board was to overcome the
deferential standard applied in these cases to demonstrate that the
Protest Decision was unreasonable or against the clear weight of
the evidence. Instead of demonstrating that its score could have
been higher, Avertest needed to show that the Board’s decision to
uphold the Protest Decision was unreasonable—i.e., that no
reasonable person could reach the same conclusion—or that a
mistake had otherwise been made. See ICS Corr., Inc. v. Utah
Procurement Policy Board, 2022 UT 24, ¶ 15, 513 P.3d 677; Staker v.
Town of Springdale, 2020 UT App 174, ¶ 24, 481 P.3d 1044.

¶27 By comparing itself to Beechtree, Avertest has pursued the
wrong path. To meet its burden of persuasion, Avertest needed to
demonstrate that the Board’s decision was unreasonable by
showing how the evaluation committee members (1) abused their
independent judgment, (2) failed to follow a provision of the RFP,
or (3) incorrectly applied a scoring criteria. In its ruling, the Board
made the point that there were “multiple rational reasons an
evaluation committee member may have given a lower score” to
Avertest. It was Avertest’s burden to show why the lower score it
received was incorrect or unreasonable, not why it should have
received a higher score based on Avertest’s own interpretation of
the scoring provisions. As Avertest has failed to meet this burden,
we decline to disturb the Board’s decision affirming the Protest
Decision.

¶28 Substantial evidence supports the Board’s rejection of
Avertest’s protest:

• Number of Collection Sites. Beechtree proposed more
collection sites—ten more than Avertest—so Avertest
received a lower score on this criteria than Beechtree. In its
protest, Avertest argued five reasons that Beechtree’s
proposed sites should have received a lower score, and
Officer addressed each concern, finding them all to be
unpersuasive. Officer pointed out that, even in the event

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that Avertest’s arguments had been persuasive, “[e]ach
proposal is scored against the evaluation criteria, not
against other proposals,” and thus a change in Beechtree’s
score on this criteria would have “no bearing on
[Avertest’s] score and does not remedy [Avertest’s] failure
to achieve the minimum score threshold.”

• Hours of Operation. Avertest received the same score as
Beechtree on this criteria. While Beechtree offered more
hours of operation because it had more sites, Avertest
offered more early morning and late evening hours of
operation. But these time windows were not automatically
entitled to more weight than Beechtree’s regular collection
hours. Avertest identified three reasons why its proposed
hours should have received a higher score, and Officer
addressed each concern, finding them all to be
unpersuasive. Officer went on to state that “[t]here are a
multitude of rational reasons an evaluator might have
scored [this criteria] the way they scored [it], including for
example, lack of early morning hours at key sites, lack of
late hours at key sites, and a limited number of sites.”

• Presence of Qualified Staff to Testify in Court. Beechtree
proposed more identified experts to testify about chain of
custody and toxicology than Avertest—Avertest’s
proposal identified only two qualified staff members
available to testify and did not list the qualifications of its
area managers—so Avertest received a lower score on this
criteria than Beechtree. In its protest, Avertest put forth a
single reason why its proposed qualified staff available to
testify in court should have received a higher score, and
Officer addressed that reason and found the argument
unpersuasive. Officer explained, “There are many reasons
why an evaluator may have scored the way they scored
[this criteria]. The lack of credentials for the area managers

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alone would provide a rational basis for [the score Avertest
received].”

• LGBTQ+ Sample Collection Observation Policy. Avertest
scored higher than Beechtree on this criteria. In its protest,
Avertest had only one argument for why it should have
received a higher score on its LGBTQ+ policy. Officer,
unpersuaded by Avertest’s argument, stated in response
that “[t]here are multiple rational reasons an evaluation
committee member may have given a lower score [on this
criteria], including the lack of detail in [Avertest’s] policy,”
which was a mere “182 words” or half a page, compared to
the highest scoring proposal, which included over four
pages of rationale for this particular criteria. Avertest failed
to provide evidence supporting its proposed policy,
explaining what the policy entailed, or describing how
such policy would be implemented.

¶29 Ultimately, Avertest failed to carry its burden to show that
the Board’s decision was arbitrary and capricious or erroneous.

CONCLUSION

¶30 We are not persuaded that the Board’s decision to uphold
the Protest Decision had no reasonable basis, nor do we believe
that the decision was against the clear weight of the evidence.
Accordingly, as the Board’s decision to uphold the Protest
Decision was not arbitrary and capricious or clearly erroneous, we
decline to disturb the Board’s decision.

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