Avertest v. Procurement Pol'y Bd.

550 P.3d 1012

2024 UT App 66

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.

No. 20220388-CA

Court of Appeals of Utah.

Filed May 9, 2024

Original Proceeding in this Court

Walter A. Romney Jr., Trenton L. Lowe, Salt Lake City, and E. Barney Gesas, Attorneys for Petitioner

Sean D. Reyes, Salt Lake City, 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.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 For several years, Avertest, LLC, dba Averhealth (Avertest) provided drug and al- cohol 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 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 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.

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 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

(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 R'FP 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."

Fourth Criteria¹

¶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

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