JLPR v. Department of Agriculture and Food

2021 UT App 52
THE UTAH COURT OF APPEALS
JLPR LLC,
Petitioner,
v.
PROCUREMENT POLICY BOARD, D EPARTMENT OF A GRICULTURE AND
F OOD, AND DIVISION OF PURCHASING AND G ENERAL S ERVICES,
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 R YAN M. HARRIS authored this Opinion, in which J UDGE
JILL M. POHLMAN and S ENIOR JUDGE K ATE A PPLEBY 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).

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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 	As 	originally
enacted, the Act also provided that the process of awarding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.

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¶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

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	4 	2021 UT App 52
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

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	5 	2021 UT App 52
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

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	6 	2021 UT App 52
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.

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	7 	2021 UT App 52
¶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

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	8 	2021 UT App 52
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

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	9 	2021 UT App 52
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).

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	10 	2021 UT App 52
¶17 	Utah’s procurement code—which governs JLPR’s petition
for review4—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…)

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	11 	2021 UT App 52
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).

JLPR v. Dep’t of Agriculture and Food
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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…)

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	13 	2021 UT App 52
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.

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	14 	2021 UT App 52
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…)

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	15 	2021 UT App 52
¶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.

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	16 	2021 UT App 52
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.

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	17 	2021 UT App 52
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.

JLPR v. Dep’t of Agriculture and Food
20190798-CA 	18 	2021 UT App 52
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.