Must Utah procurement officers hold hearings on vendor protests? WellSky Corp. v. Procurement Policy Board Explained

In WellSky Corp. v. Procurement Policy Board, the Utah Court of Appeals clarified when procurement officers must hold hearings on vendor protests, establishing important procedural safeguards for disappointed bidders.

Background and Facts

WellSky Corporation submitted a proposal for government cloud services but received only a 61% score, falling short of the required 70% threshold. WellSky protested, alleging the Division failed to correctly apply scoring criteria and applied undisclosed requirements. Specifically, WellSky argued that receiving only 60% for its cover letter despite “substantially and materially” satisfying five of six criteria suggested hidden evaluation standards.

The Chief Procurement Officer dismissed WellSky’s protest twice without holding the requested hearing. The Procurement Policy Board initially remanded the case but ultimately affirmed the dismissal after the officer again refused to conduct a hearing.

Key Legal Issues

The central issue was whether Utah Code § 63G-6a-1603(3) required a hearing on WellSky’s protest. This statute provides three exclusive options for protest officers: (a) dismiss without hearing if allegations, even if true, provide no adequate basis; (b) uphold without hearing if undisputed facts support the protest; or (c) hold a hearing if genuine issues of material fact or law need resolution.

Court’s Analysis and Holding

The Court of Appeals found that WellSky’s allegations, if true, would provide an adequate basis for protest under the procurement statutes, eliminating option (a). Option (b) allows only upholding protests based on undisputed facts, not dismissing them. Since neither the officer nor the Board upheld the protest, option (c)—requiring a hearing—was mandatory. The court emphasized that the statute uses “shall,” making the hearing requirement non-discretionary when the first two options are unavailable.

Practice Implications

This decision strengthens procedural protections for procurement protestors by clarifying that hearings are mandatory in certain circumstances. The ruling also addressed protest appeal records, confirming they include only documents the protest officer “relied upon,” not everything reviewed. Practitioners should carefully analyze which statutory option applies and preserve hearing rights when neither outright dismissal nor upholding without hearing is appropriate under the statutory framework.