Can bidders successfully challenge government procurement scoring decisions in Utah? Avertest v. Procurement Board Explained

Background and Facts

In Avertest v. Procurement Board, Avertest, LLC challenged the Utah Department of Human Services’ rejection of its bid for drug and alcohol testing services. The procurement process involved three stages: initial review, technical proposal evaluation, and cost proposal evaluation. Avertest’s proposal received a technical score of 50.25, falling short of the required 51-point threshold needed to advance to the final cost evaluation stage. Beechtree Diagnostics ultimately won the contract after scoring 60.5 points and demonstrating superior cost effectiveness.

Key Legal Issues

The central issue was whether the Procurement Policy Board’s decision upholding the denial of Avertest’s protest was arbitrary and capricious or clearly erroneous. Avertest argued that the evaluation committee improperly scored multiple technical criteria, including the number of collection sites, hours of operation, qualified staff availability, and LGBTQ+ policy requirements. The company contended that proper scoring would have elevated its proposal above the threshold and ultimately resulted in contract award.

Court’s Analysis and Holding

The Utah Court of Appeals applied the substantial evidence standard, requiring that agency decisions be supported by evidence adequate to convince a reasonable mind. The court found that the Board adequately addressed Avertest’s arguments by implicitly adopting the detailed protest officer’s decision, which methodically addressed each scoring challenge. The court emphasized that evaluation committee members have discretion in scoring subjective criteria and that proposals are scored against evaluation criteria, not against competing proposals.

Practice Implications

This decision reinforces the deferential standard applied to procurement decisions in Utah. Practitioners challenging procurement awards must demonstrate that evaluation committees abused their independent judgment, failed to follow RFP provisions, or incorrectly applied scoring criteria—not merely that their client deserved a higher score. The case highlights the importance of providing detailed responses to all RFP criteria, as Avertest’s brief half-page LGBTQ+ policy was reasonably scored lower than a competitor’s four-and-a-half-page response. Success in procurement appeals requires showing the decision was unreasonable rather than arguing for alternative scoring interpretations.