WellSky Corporation v. Procurement Policy Board

2026 UT App 12
THE UTAH C OURT OF APPEALS
WELLS KY C ORPORATION ,
Petitioner,
v.
PROCUREMENT POLICY BOARD AND U TAH DIVISION OF PURCHASING
AND GENERAL S ERVICES ,
Respondents.
Opinion
No. 20250869-CA
Filed January 29, 2026
Original Proceeding in this Court
Christopher R. Hogle and Courtney Thompson,
Attorneys for Petitioner
Derek E. Brown, Andrew Dymek, and Steve Geary,
Attorneys for Respondents
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN D. TENNEY concurred.
HARRIS, Judge:
¶1 	The Utah Division of Purchasing and General Services (the
Division), as the lead procurement agency for a consortium of
state agencies, solicited bidders for a contract to provide cloud
and software services. WellSky Corporation (WellSky), a software
and technology company, submitted a proposal that ended up
being rejected because it received a score that was too low.
WellSky appealed its rejection first to the Chief Procurement
Officer 	(the 	Officer) 	and 	then 	to 	an 	appeals 	panel 	of 	the
Procurement Policy Board (the Board). After two rounds of
appeals, WellSky’s protest was ultimately rejected. WellSky now
seeks judicial review of the Board’s final decision, arguing chiefly
that the protest process was infirm because WellSky did not
receive a hearing. After considering the arguments, we conclude

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that, under the terms of the governing statute, WellSky was
entitled to a hearing on its protest, and because it did not receive
one, we set aside the Board’s decision and send this matter back
so that a hearing before the Officer can be held.
BACKGROUND
¶2 	In November 2024, the Division issued a Request for
Proposals (RFP) seeking applications from vendors interested in
providing cloud and software services to government agencies.
The proposal evaluation process involved five stages. Vendor
proposals were initially evaluated under the first three stages, and
if a vendor’s proposal passed these stages, the vendor would then
be invited to submit responses for the final two stages. A vendor’s
submission was assessed by members of an evaluation committee.
The 	scoring 	procedure 	involved 	a 	few nuances 	relevant 	to
WellSky’s protest, and for context, we provide here a summary of
the relevant parts of that procedure.
¶3 	To pass the third stage, the RFP required a vendor’s
proposal to obtain a minimum score of 70%. That score was the
sum of individual scores from the following sections: cover letter,
executive summary, general requirements, business profile, scope
of experience, financials, and contract management. While each
section was assigned a single possible point total, each section
included various subsections that did not indicate any required or
possible point allocation.
¶4 	The evaluation committee assigned scores for each of the
seven sections on a 1-to-5 scale, and vendors were informed that
“scoring is subjective and reflects the evaluators’ professional
judgment.”1 Each proposal would “be scored by at least three
1. This information was not in the RFP itself but was found on the
Division’s website. The RFP advised vendors to “check [the
website] for answered questions . . . before the closing date.”

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evaluator committee members,” whose scores would be averaged
to obtain a “consensus score.” Notably, vendors were informed
that they would receive a score of 3 if their proposal “address[ed]
all requirements or criteria in the RFP satisfactorily,” and that they
would receive a passing score of 4 or 5 only if their proposal not
only 	“address[ed] 	all 	requirements 	or 	criteria” 	but 	also
“exceed[ed]” at least some of them. A score of 3 would result in
60% of the possible points and would fall below the requisite 70%
minimum threshold.
¶5 	WellSky 	submitted 	a 	response 	to 	the 	RFP, 	but 	its
submission did not receive a high enough score—its consensus
score was 61%—to pass the third stage of the evaluation. Two
days after learning of its score, WellSky submitted a records
request to the Division pursuant to the Government Records
Access and Management Act (GRAMA), Utah Code § 63G-2-103
to -901, asking for copies of “all records regarding the evaluations
of submissions and proposals submitted in response to” the RFP,
“including any records prepared by, or for, any or all members of
the evaluation team.” The next day, the Division denied WellSky’s
request, citing the provision of GRAMA pertaining to protected
procurement records, see id. § 63G-2-305(6), and stating that “the
requested records are protected until after the contract(s) has been
awarded and signed by all parties.”
¶6 	WellSky also filed a protest with the Officer, contesting the
Division’s rejection of its proposal. In its protest, WellSky asserted
that its score “show[ed] that the Division failed to correctly apply
the RFP requirements and scoring criteria, applied requirements
and criteria that were not identified in the RFP, and applied
requirements and criteria in an unduly restrictive and anti-
competitive manner,” in violation of Utah’s procurement statutes.
In support, WellSky addressed each of its individual section
scores. For example, WellSky contested its 60% score for the cover
letter, arguing that it “substantially and materially satisfied” the
six criteria for this section, even while “acknowledg[ing] that its

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response inadvertently omitted” at least part of one of the criteria.
After addressing the remaining sections, WellSky argued that its
response to the RFP demonstrated “capability, experience, and
stability sufficient to enable further evaluation of WellSky’s”
services and that its score should be “based solely on the criteria
identified in the RFP.” WellSky asked that it be allowed to
proceed to the next stage of the RFP process, and, among other
things, it requested a hearing before the Officer.
¶7 	The 	Officer 	dismissed 	the 	protest 	without 	holding 	a
hearing. In her written decision, the Officer found that the
Division 	had 	“adhered 	to 	the 	Utah 	Procurement 	Code,
administrative rules, and solicitation requirements during the
procurement and in evaluating the responses submitted to the
solicitation.” The Officer explained that WellSky’s argument for a
higher score did “not qualify as a concise statement of grounds
for a protest without specific facts and evidence.” And the Officer
concluded that “even considering the facts presented” as “true,”
WellSky “ha[d] not provided [an] adequate basis for the protest.”
(Citing id. § 63G-6a-1603(3)(a).)
¶8 	WellSky appealed to the Board, arguing that the Officer did
not adequately address the merits of its arguments and that the
Officer’s 	dismissal 	“without 	even 	holding 	a 	hearing 	[was]
arbitrary 	and 	capricious 	and 	clearly 	erroneous.” 	WellSky
requested that its RFP response “be re-scored correctly, using only
criteria expressed in the RFP,” which it believed would result in
WellSky advancing to the next stage of the procurement process.
After review, the Board sustained WellSky’s appeal. The Board
offered its view that a “review of the [Officer’s] written decision
. . . does not show that WellSky’s arguments regarding improper
scoring were adequately addressed.” The Board further explained
that “a protestor providing relevant facts and evidence regarding
scoring requires at a minimum the reviewer to determine that the
scoring 	by 	the 	evaluation 	committee 	was 	supported 	by
substantial evidence and was not arbitrary and capricious.” From

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its 	review 	of 	the 	Officer’s 	decision, 	the 	Board 	“could 	not
affirmatively find” that the Officer had determined that the scores
were “supported by substantial evidence.” Thus, the Board
remanded the matter to the Officer “to take further action to
review the record regarding the arguments presented by WellSky
and render a new decision either denying or sustaining WellSky’s
appeal” (the Remand).
¶9 	Following 	the 	Remand, 	the 	Officer 	issued 	another
decision—again 	without 	holding 	a 	hearing—dismissing
WellSky’s protest (the Second Dismissal). The Officer stated that
WellSky’s “core assertion” was that it “should have scored more
points.” 	The 	Officer 	explained 	that 	she 	had 	reviewed 	the
“solicitation, solicitation file, and evaluation scoring,” and in her
view, “the standards of review across the evaluation committee
members were consistent with all vendors.” She also stated that
there was “no evidence that the evaluation committee scored
WellSky any differently for the seven evaluation criteria than any
other submitted response.” After acknowledging that WellSky
had 	requested 	a 	hearing 	as part 	of 	its protest, the 	Officer
nevertheless found that “the record show[ed] that the evaluation
committee’s scoring was consistent using the stated evaluation
criteria in the RFP.” She also noted that a “protest may not include
a request for an explanation of the rationale or scoring of . . .
evaluation committee members.” (Citing id. § 63G-6a-1602(6)(a).)
And she concluded that “even the facts as alleged as true . . . do
not provide an adequate basis for the protest because the record
contains substantial evidence that supports the decision.”
¶10 	WellSky appealed to the Board again. WellSky repeated
some of the arguments discussed above, but in addition, it argued
that the Officer violated Utah law when she did not either uphold
the protest or at least hold a hearing on the matter. In this vein,
WellSky asserted that Utah’s procurement statutes provide only
three options to a protest officer when addressing a protest in the
first instance: (1) dismiss the protest without a hearing if the

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protest alleges facts that, if true, do not provide an adequate basis
for the protest; (2) uphold the protest without a hearing if the
undisputed facts indicate that the protest should be upheld; or
(3) hold a hearing if there is a genuine issue of material fact or law
that needs to be resolved. (Citing id. § 63G-6a-1603(3).) WellSky
argued that the Remand had effectively foreclosed the first option,
leaving only the latter two options available to the Officer: uphold
the protest or hold a hearing. Thus, WellSky argued that the
Officer had acted contrary to statute when she dismissed the
protest, without holding a hearing, based on her own assessment
of the evidence in the record. Apparently frustrated with the
Officer’s 	repeated 	dismissals, 	WellSky 	told 	the 	Board 	that,
“[r]ather than simply remand this matter again for the . . . Officer
to decide WellSky’s protest a third time, [it] should consider the
merits of WellSky’s protest.”
¶11 	Later, 	the 	Board 	issued 	a 	second 	decision, 	this 	time
concluding 	that 	the 	Second 	Dismissal 	was 	supported 	by
substantial evidence and was not “arbitrary and capricious.” The
Board noted that there “were a number of vendors responding to
the RFP (more than 200), with six individuals reviewing all of
these RFP proposals while attempting to remain consistent with
their scoring.” The Board also noted that “[i]t was also apparent
that the bar for disqualifying vendors” was purposely “high,” “to
winnow out otherwise qualified candidates.” Based on its own
review, the Board explained that “the evaluation committee
closely scrutinized all submitted responses” and that “the scoring
by the six scoring individuals shows that the RFP scoring was
subjective, 	but 	was 	not 	arbitrary 	and 	capricious, 	or 	clearly
erroneous.” The Board thus dismissed WellSky’s appeal.
¶12 	WellSky timely filed a petition for judicial review with this
court. Before filing its opening brief, WellSky filed a motion,
pursuant to rules 11 and 18 of the Utah Rules of Appellate
Procedure, asking permission to supplement the record. In that
motion, 	WellSky 	argued 	that 	the 	record 	on 	appeal 	was

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“materially incomplete and lack[ed] fundamental documents that
were part of the solicitation file and [bore] directly on WellSky’s
claims in this procurement protest appeal.” WellSky argued that
it was entitled to “all documentation and other evidence the
[Officer] relied upon in reaching [her] decision.” (Quoting id.
§ 63G-6a-1601.5(3).) 	And 	WellSky 	pointed 	to 	the 	Officer’s
statement that, in reaching her conclusion “that evaluation criteria
were consistently applied across all vendors,” she had reviewed
“the 	solicitation, 	solicitation 	file, 	and 	evaluation 	scoring.”
WellSky 	argued 	that 	“[c]ritical 	to 	this 	appeal 	would 	be
correspondence 	between 	agency 	personnel 	regarding 	RFP
submissions and evaluations, evaluator notes, and emails related
to the evaluation process.”
¶13 	The Division filed an opposition to the motion, arguing
that “all” the documents that the Officer had actually “relied
upon” in dismissing WellSky’s protest were already part of the
protest 	appeal 	record. 	The 	Division 	further 	argued 	that
“[r]equiring the Board to supplement the record with the entire
solicitation file would give WellSky access to a vast amount of
sensitive information that is entirely irrelevant to WellSky’s
protest and this appeal.”
¶14 	In support of its position, the Division submitted a sworn
declaration from the Officer in which she averred, among other
things, that the “record . . . provided to the [c]ourt contains all the
documents that [she] relied upon . . . in reaching [her] decisions
concerning WellSky’s protest.” The Officer clarified that, in this
case, her reference in the Second Dismissal to having “‘review[ed]
. . . the solicitation file’” did not mean that she actually “relied
upon every document in the solicitation file.” Rather, the Officer
declared that she “reviewed the solicitation file by listing the
documents in the file,” not by opening, reviewing, or reading the
contents of every document in the solicitation file. She also
averred that she did not rely upon any “evaluator notes” or emails
in reaching her decision and that, in any event, the solicitation file

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“d[id] not contain any evaluator notes,” “emails,” “or similar
documents from WellSky’s Stage 3 evaluation.” Finally, the
Officer stated that she had not relied upon any other vendors’
proposals in reaching her decision.
¶15 	As discussed more fully in Part II, below, we denied
WellSky’s motion to supplement the record, and the parties filed
their briefs according to the briefing schedule.
ISSUES AND STANDARDS OF REVIEW
¶16 	In its petition, WellSky argues that the Board erred when it
affirmed the Officer’s decision, and WellSky takes specific issue
with the Officer’s “fail[ure] to hold a hearing and examine readily
available evidence within the Division’s exclusive control bearing
directly 	on 	whether 	the 	evaluation 	committee 	applied
undisclosed scoring criteria or misapplied the RFP’s published
criteria.” It also takes issue with the contents of the record that has
been submitted to us.
¶17 	With regard to the merits of a decision rendered by the
Board, we will disturb that decision only if it was “arbitrary and
capricious or clearly erroneous.” Utah Code § 63G-6a-1802(4)(c).
An agency’s decision is arbitrary and capricious if “it is not
supported by substantial evidence in the record.” Staker v. Town
of Springdale, 2020 UT App 174, ¶ 24, 481 P.3d 1044 (cleaned up);
accord 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
contrary,” we determine that “a reasonable mind could reach the
same conclusion” as the administrative decisionmaker. Staker,
2020 UT App 174, ¶ 24 (cleaned up).
¶18 	But an agency’s interpretation of a statute is reviewed
without deference. See Hughes Gen. Contractors, Inc. v. Utah Labor
Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712 (“[W]e have retained for

WellSky Corp. v. Procurement Policy Board
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the courts the de novo prerogative of interpreting the law,
unencumbered by any standard of agency deference.”); see also
Ellis-Hall Consultants v. Public Serv. Comm’n, 2016 UT 34, ¶ 27, 379
P.3d 1270 (“[A]gency decisions premised on pure questions of law
are subject to non-deferential review for correctness.”).
ANALYSIS
I. The Protest Process
¶19 	WellSky first argues that it was entitled to a hearing on its
protest. For the reasons discussed below, we agree with WellSky,
set aside the Board’s decision, and send this matter back for
further proceedings, including a hearing before the Officer.
¶20 	Utah’s procurement statutes—which govern WellSky’s
petition for review—allow a losing applicant for a state contract
to challenge a denial by filing a protest with a designated officer.
See Utah Code § 63G-6a-1602(1). Relevant statutes provide six
grounds upon which a protestor may object to an agency’s
decision, provided that “facts and evidence” exist that, “if true,”
support the objections. See id. § 63G-6a-1602(4)(b). Among other
grounds, 	a 	losing 	applicant 	may 	protest 	if 	the 	evaluation
committee “fail[ed] to correctly apply or calculate a scoring
criterion.” Id. § 63G-6a-1602(4)(b)(v).
¶21 	If a protest is timely filed and otherwise compliant, see id.
§ 63G-6a-1603(1)–(2), Utah law mandates that a “protest officer
shall” take one of the following three options:
(a) dismiss the protest without holding a hearing if
the protest officer determines that the protest
alleges facts that, if true, do not provide an
adequate basis for the protest;

WellSky Corp. v. Procurement Policy Board
20250869-CA 	10 	2026 UT App 12
(b) uphold the protest without holding a hearing if
the 	protest 	officer 	determines 	that 	the
undisputed facts of the protest indicate that the
protest should be upheld; or
(c) hold a hearing on the protest if there is a genuine
issue of material fact or law that needs to be
resolved in order to determine whether the
protest should be upheld.
Id. § 63G-6a-1603(3). In this opinion, we will refer to the individual
subsections of this statute as “subsection (a),” “subsection (b),”
and “subsection (c).” As currently written, the statute makes no
other options available to the protest officer at this stage of the
process. See id.
¶22 	Our appellate courts have not had occasion to interpret the
language of these three subsections. When we interpret a statute,
the purpose “is to ascertain the intent of the legislature.” In re
adoption of B.H., 2020 UT 64, ¶ 31, 474 P.3d 981 (cleaned up). And
the 	best 	evidence 	of 	legislative 	intent 	is 	the 	language 	our
legislature used to express that intent. See Hertzske v. Snyder, 2017
UT 4, ¶ 10, 390 P.3d 307. “When we can ascertain the intent of the
legislature from the statutory terms alone, no other interpretive
tools are needed, and our task of statutory construction is
typically at an end.” Scott v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275
(cleaned up).
¶23 	With those principles in mind, it is apparent from the plain
language of the statute that the actions available to the protest
officer have kindred analogues in our rules of civil procedure.
Compare Utah Code § 63G-6a-1603(3)(a), with Utah R. Civ. P.
12(b)(6); compare Utah Code § 63G-6a-1603(3)(b)–(c), with Utah R.
Civ. P. 56. Subsection (a) allows the protest officer to dismiss a
protest without a hearing when the losing applicant “alleges facts
that, if true, do not provide an adequate basis for the protest.”
Utah Code § 63G-6a-1603(3)(a) (emphasis added). This procedure

WellSky Corp. v. Procurement Policy Board
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limits the protest officer’s examination to the allegations made by
the protestor; it does not appear to allow for consideration of the
actual evidence in the case. See id. Indeed, under this option, the
protest 	officer 	must 	assume 	the 	truth 	of 	the 	protestor’s
allegations. See id. In this way, the procedure of subsection (a) is
similar to the process required under rule 12(b)(6) of the Utah
Rules of Civil Procedure, which allows a court to dismiss a case
“when, assuming the truth of the allegations that a party has
made and drawing all reasonable inferences therefrom in the light
most favorable to that party, it is clear that the party is not entitled
to relief.” Calsert v. Estate of Flores, 2020 UT App 102, ¶ 9, 470 P.3d
464 (cleaned up); see also Pace v. Link Debt Recovery LLC, 2024 UT
App 4, ¶ 12, 542 P.3d 979 (explaining that, on a rule 12(b)(6)
motion, a court “must accept the material allegations of the
complaint as true” and dismiss the case “only if it clearly appears
the complainant can prove no set of facts in support of his or her
claims” (cleaned up)), cert. denied, 547 P.3d 829 (Utah 2024).
¶24 	Subsection (b) permits a protest officer to “uphold” a
protest without a hearing if the “undisputed facts of the protest
indicate that the protest should be upheld.” Utah Code § 63G-6a-
1603(3)(b). This option allows the protest officer to look beyond
the allegations made and to examine the actual evidence to see if
the facts are “undisputed.” Id. If they are, and if those facts compel
a resolution in the protestor’s favor, then the protest officer should
uphold the protest. See id. This process is similar to the one
available under rule 56 of the Utah Rules of Civil Procedure, in
which a court may grant a motion for summary judgment “if the
moving party shows that there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a); see also Turley v. Childs, 2022
UT App 85, ¶ 27, 515 P.3d 942 (explaining that a motion for
summary judgment can be granted if the “motion and supporting
materials—including 	the 	facts 	considered 	undisputed—show
that the moving party is entitled to judgment as a matter of law”
(cleaned up)). It is important to note, however, that subsection (b)

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does not allow the protest officer to dismiss the protest based on
undisputed facts; it speaks only of “uphold[ing] the protest.” Utah
Code § 63G-6a-1603(3)(b).
¶25 	Finally, subsection (c) requires a protest officer to hold a
hearing on the matter if “there is a genuine issue of material fact
or law that needs to be resolved.” Id. § 63G-6a-1603(3)(c). This
action calls to mind the trial that must be held, in district court, if
summary judgment is not warranted under rule 56. See Jackson v.
Dabney, 645 P.2d 613, 615 (Utah 1982) (“[A] motion for summary
judgment 	should 	be 	denied 	where 	the evidence 	presents a
genuine issue of material fact which, if resolved in favor of the
nonmoving party, would entitle [that party] to judgment as a
matter of law.”). But this action is not identical to the denial-of-
summary-judgment procedure; indeed, under the terms of the
relevant statute, subsection (c) is the only subsection available to
a protest officer if the officer assesses the evidence and finds that
the facts (as opposed to the allegations made)—whether disputed or
not—preclude a ruling in the protestor’s favor. See Utah Code
§ 63G-6a-1603(3)(c). In particular, subsection (c) applies when
neither of the other two subsections do and where there is a
“genuine issue . . . of law that needs to be resolved.” Id.
¶26 	In this case, WellSky submitted a protest in which it alleged
that “the Division failed to correctly apply the RFP requirements
and scoring criteria, applied requirements and criteria that were
not identified in the RFP, and applied requirements and criteria
in an unduly restrictive and anti-competitive manner.” More
particularly, in its protest WellSky asserted that, with regard to
each individual section of its proposal, some criteria other than
those listed in the RFP must have existed to guide the evaluators’
scores. Among other things, WellSky pointed to its 60% score for
the cover letter, arguing that it had “substantially and materially
satisfied” 	the 	six 	criteria 	for 	this 	section, 	even 	while
“acknowledg[ing] that its response inadvertently omitted” at
least part of one of the criteria. WellSky posited that such a

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substantial score deduction for missing only one half of one
criterion indicated that an undisclosed rubric may have existed.
And WellSky advanced similar arguments for the remaining
individual section scores.
¶27 	If these allegations were true, this would be an adequate
basis for a protest under the governing statutes, which allow
protests based on, among other things, “facts and evidence that,
if true, would establish” “a failure to correctly apply or calculate
a scoring criterion.” See id. § 63G-6a-1602(4)(b)(v). Thus, we agree
with WellSky that subsection (a) wasn’t a viable option for the
Officer to take because WellSky’s protest alleged facts that—if
true—would have provided an adequate basis to challenge the
dismissal of WellSky’s proposal.2 As already noted, the plain text
of subsection (a) limits a protest officer to examination of the
allegations, and it does not contemplate examination of the actual
facts of the case. Thus, with subsection (a) off the table, the Officer
was left with two options: uphold the protest under subsection (b)
if the undisputed facts supported that outcome, or hold a hearing
on the protest under subsection (c).
¶28 	But 	subsection 	(b) 	wasn’t 	a 	viable 	option 	either, 	as
demonstrated 	by 	the 	Officer’s 	and 	the 	Board’s 	analyses.
Subsection (b) allows a protest officer to consider evidence
without a hearing, which the Officer and the Board did in this
case. But, critically, the result can only be to uphold the protest, not
2. WellSky argues that the Remand itself foreclosed the Officer’s
ability to dismiss the protest under subsection (a). We take
WellSky’s point, but we ultimately need not make a decision on
the merits of this argument, because we agree with WellSky on
the broader contention that—for the reasons discussed herein—
subsection (a) was not an option for the Officer here.

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to dismiss it. See id. § 63G-6a-1603(3)(b).3 Yet both the Officer and
the Board assessed the evidence without a hearing en route to
dismissing 	the 	protest. 	The 	governing 	statute, 	as 	currently
written, does not allow for this option. Indeed, the statute leaves
the protest officer with no discretion in this regard: “the protest
officer shall” take one of the three specified actions. See id. § 63G-
6a-1603(3) (emphasis added). Where the statute plainly limits the
options for a factfinder or adjudicator, we apply the statute
according to its terms. See, e.g., In re A.S.G.-R., 2023 UT App 126,
¶ 48, 538 P.3d 1259 (explaining that under the termination of
parental rights statute, “[t]he language . . . speaks of only three
options, and requires the court” to choose one).
¶29 	That left but one option for the Officer to take: hold a
hearing pursuant to subsection (c) and consider the facts. This is
the only option available to a protest officer who believes that the
facts—even 	if 	undisputed—compel 	dismissal 	of 	a 	protest.
Because neither subsection (a) nor subsection (b) applies here, and
because a hearing was not held, the Board’s decision to affirm the
Officer’s action was procedurally incorrect and contrary to the
governing statute. While we will disturb an agency’s decision
only when the decision is “arbitrary and capricious or clearly
erroneous,” 	Utah 	Code 	§ 	63G-6a-1802(4)(c), 	an 	agency’s
interpretation of a statute is reviewed without deference, see supra
3. We note here the statute’s lack of symmetry in this regard.
Subsection (b) permits the protest officer to uphold the protest
without a hearing if the undisputed facts so indicate, but the
protest officer cannot dismiss a protest—at least not without a
hearing—if the undisputed facts so indicate. See Utah Code § 63G-
6a-1603(3). Indeed, as noted, the statute offers only three options
to a protest officer in this context. Id. To the extent our legislature
intended for additional options to be available to a protest officer,
we would invite the legislature to consider amending the statute.

WellSky Corp. v. Procurement Policy Board
20250869-CA 	15 	2026 UT App 12
¶¶ 	17–18. 	Given 	the 	Board’s 	departure 	from 	the 	actions
permissible under the law, we must set aside the Board’s decision.
¶30 	The Division resists this conclusion, arguing that WellSky
“invited error” by asking the Board, during its second appeal, to
address the protest on its merits rather than remand the case again
for a hearing. We disagree.
¶31 	As an initial matter, WellSky in its second appeal made its
position very clear: subsection (a) didn’t apply, and therefore the
only way the Board could affirm dismissal of its protest was
through 	subsection 	(c), 	which 	required 	a 	hearing. 	Indeed,
WellSky asserted that subsections (b) and (c) were “the only ones
available to” the Officer, and that the Officer’s decision was
improper because she “follow[ed] neither one” and “neither
upheld the protest nor held a hearing.”
¶32 	To be sure, on the same page of its written submission,
WellSky expressed frustration with the Officer, complaining that
“[t]wo times now the [Officer] has failed to adequately address
WellSky’s protest.” And it asked the Board to essentially take the
process over and to just “consider the merits of WellSky’s protest”
without sending the matter back to the Officer. But we do not
construe 	this argument 	as a 	request that the 	Board 	ignore
subsection (c) and dispose of the case before a hearing could be
held. Indeed, WellSky appeared to suggest that the Board—and
not the Officer—should hold any required hearing, arguing at one
point that “[t]he [procurement] [c]ode requires the Board to
‘consider and decide the appeal based solely on,’” among other
things, “‘responses received during an informal hearing, if an
informal 	hearing 	is 	held.’” 	(Quoting 	id. 	§ 	63G-6a-1702(7)
(emphasis added).) And WellSky concluded its argument along
these lines by asserting that the Second Dismissal was “clearly
erroneous” because, among other reasons, the decision “fail[ed]
to follow the Board’s instructions” in the Remand and failed to
follow section “63-6a-1603(3),” the statutory provision setting

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20250869-CA 	16 	2026 UT App 12
forth the Officer’s three options. As we interpret WellSky’s
position, it was asking the Board to either issue a subsection (b)
ruling upholding its protest on undisputed facts, or hold the
required subsection (c) hearing itself so that it could more
comprehensively 	consider 	the 	facts. 	We 	therefore 	see 	little
support for the Division’s contention that WellSky invited error
by telling the Board not to hold a hearing. On that basis, we reject
the Division’s invited error argument.4
¶33 	For these reasons, we set aside the Board’s decision and
return the case to the Division for further proceedings, including
a hearing under subsection (c) in accordance with the governing
statutory framework. See id. § 63G-6a-1603(4)–(11) (providing the
rights and responsibilities of the protest officer and protestor in a
protest hearing). By returning this matter for further proceedings,
we offer no opinion as to the ultimate merits of WellSky’s protest;
we 	determine 	only 	that 	WellSky’s protest was prematurely
dismissed because no hearing was held.
II. The Protest Appeal Record
¶34 	While WellSky’s petition for judicial review primarily
targets the denial of a hearing under subsection (c), a throughline
in WellSky’s arguments centers on the purportedly incomplete
“protest appeal record.” Specifically, WellSky argues that the
Officer based “her decision on cherry-picked portions of the
4. For similar reasons, we reject the Division’s similar argument
that WellSky did not preserve the issue of whether the Board
erred by not remanding the matter a second time for a hearing. As
noted, WellSky argued in its second appeal that the Officer “had
three options under Utah Code [section] 63G-6a-1603(3)” and that
only two of those options remained: upholding the protest or
holding a hearing. In this way, WellSky clearly advanced the
argument that the statute limited the Officer’s actions to just three
choices and that the Officer erred by choosing none of them.

WellSky Corp. v. Procurement Policy Board
20250869-CA 	17 	2026 UT App 12
solicitation file and refus[ed] to hold a hearing,” while “the
Division 	was 	simultaneously 	denying 	WellSky 	access to 	its
solicitation file.” As a consequence, WellSky argues that at “no
time when WellSky’s protest was pending in the Division (either
before [the Officer] or the Board) was WellSky allowed to see any
portion of the solicitation file that the [Officer] reviewed or relied
upon to deny WellSky’s protest.”
¶35 	Because we dispose of this judicial review proceeding by
setting aside the Board’s order and returning the case for further
action, the protest appeal record related to this review proceeding
has run its course. And should there be a second request for
judicial review in this matter, the protest appeal record in that
proceeding will almost certainly be somewhat different from the
one associated with this proceeding. Nevertheless, because these
issues might come up in future proceedings in this case, we take
the opportunity here to address some of WellSky’s record-based
arguments and explain why we denied its motion to supplement.
See State v. Valdez, 2021 UT App 13, ¶ 54, 482 P.3d 861 (providing
“guidance that might be useful on remand, where [the] issues are
likely to arise again”), aff’d, 2023 UT 26, 552 P.3d 159.
¶36 	We emphasize at the outset that development of the protest
appeal record is governed by statute (and not by the rules of civil
procedure) and that, as a result, the record-development process
in procurement protest cases is not the same as in an appeal from
a judgment in district court. And as explained in more detail
below, in procurement protest cases a protestor’s entitlement to
documents and records is substantially limited.
¶37 	Two different statutes contain related guardrails in this
regard. For starters, GRAMA includes a provision specifically for
procurement records. See Utah Code § 63G-2-305(6). It provides
for the protection of “records, the disclosure of which would
impair governmental procurement proceedings or give an unfair
advantage to any person proposing to enter into a contract or

WellSky Corp. v. Procurement Policy Board
20250869-CA 	18 	2026 UT App 12
agreement with a governmental entity,” and it mandates that only
“after the contract or grant has been awarded and signed by all
parties” will some specified records be available. Id.
¶38 	Moreover, the procurement statutes themselves contain
limitations—tied to this GRAMA provision—on a protestor’s
entitlement to the contents of a solicitation file. Specifically, a
“protest may not include a request for . . . the disclosure of a
protected record or protected information in addition to the
information provided under the disclosure provisions of this
chapter.” Id. § 63G-6a-1602(6)(b). And a “procurement unit . . .
may not disclose the contents of a proposal to the public or to
another offeror, except as provided in” the GRAMA provision
quoted above. Id. § 63G-6a-704(1)(c) (emphasis added).
¶39 	With this background, we turn to the statutory definition
of “protest appeal record,” which is the operative provision that
governs here. Id. § 63G-6a-1601.5(3). Per statute, the protest appeal
record consists of the following items:
(a) a copy of the protest officer’s written decision;
(b) all 	documentation 	and 	other 	evidence 	the
protest officer relied upon in reaching the protest
officer’s decision;
(c) the recording of the hearing, if the protest officer
held a hearing;
(d) a copy of the protestor’s written protest; and
(e) all documentation and other evidence submitted
by the protestor supporting the protest or the
protestor’s claim of standing.
Id. (emphasis added).

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20250869-CA 	19 	2026 UT App 12
¶40 	In this case, WellSky asserts that the record submitted to us
was “materially incomplete and lack[ed] fundamental documents
that 	were 	part 	of 	the 	solicitation 	file 	and 	bear 	directly 	on
WellSky’s claims in this procurement protest appeal.” WellSky
argues that it was entitled to “all documentation and other
evidence the protest officer relied upon in reaching the protest
officer’s decision.” (Quoting id. § 63G-6a-1601.5(3).) And in turn,
WellSky points to the Officer’s statement that, in reaching her
conclusion “that evaluation criteria were consistently applied
across all vendors,” she reviewed “the solicitation, solicitation file,
and evaluation scoring.” WellSky argues that “correspondence
between 	agency 	personnel 	regarding 	RFP 	submissions 	and
evaluations, evaluator notes, and emails related to the evaluation
process” would be “[c]ritical to this appeal.” And it asserts that,
because these documents were not contained in the record
submitted to us, supplementation of the record was necessary.
¶41 	In a previously entered order, we rejected WellSky’s
argument. The relevant statute uses the phrase “relied upon”; it
does not use words like “reviewed” or “considered.” See id. § 63G-
6a-1601.5(3)(b). 	While 	the 	Officer 	may 	have 	reviewed 	many
documents contained within the solicitation file in rendering the
Second Dismissal, she later clarified, in a sworn declaration, that
she had relied only upon specific documents, all of which became
part of the protest appeal record submitted to us. And she
clarified that, in reaching her decision, she did not rely upon the
entirety of the solicitation file, or upon any “evaluator notes” or
emails, or upon any other vendors’ proposals. The Officer averred
that she relied only upon the records that are contained in the
protest appeal record. And given this sworn declaration, we
concluded that the protest appeal record submitted to us is
complete and that no supplementation was warranted.
¶42 	WellSky argues that it was entitled to more records than
what the Officer claims to have relied upon in rendering the
Second Dismissal; it asserts that the Officer should not be free to

WellSky Corp. v. Procurement Policy Board
20250869-CA 	20 	2026 UT App 12
“cherry-pick” the documents contained in the record and thus
shield the rest of the procurement file from WellSky’s view.
WellSky asserts that “[t]his dual approach—turning a blind eye to
the portions of the [procurement] file that would bear most
directly 	[on] 	WellSky’s protest 	and 	withholding 	them 	from
WellSky—skews 	the 	‘record’ 	and 	deprives 	[the 	court] 	of 	a
complete record with which to review the Board’s” decision.
¶43 	We 	understand 	the 	basis 	of 	this 	argument. 	And 	we
acknowledge that, for parties used to litigating in court under the
usual rules of discovery, this procedure might seem constricted
and insufficient. After all, the discovery and record-development
rules governing appeals from district court are far broader than
this. See Utah R. Civ. P. 26(b)(1) (allowing parties to “discover any
matter, not privileged, which is relevant to the claim or defense of
any 	party 	if 	the 	discovery 	satisfies 	the 	standards 	of
proportionality”); Utah R. App. P. 11(a) (“The record on appeal
consists of the documents and exhibits filed in or considered by
the trial court, . . . and the transcript of proceedings, if any.”). But
in this unique context, the procurement statutes—and not our
rules of civil procedure—govern both the protest action itself and
the records available to the protestor on appeal. See Utah Code
§§ 63G-6a-1601.5(3) (defining “[p]rotest appeal record”), -1602
(providing the process for filing a protest), -1701.5(2) (citing
section 1601.5(3) for the definition of a protest appeal record for
proceedings before the Board), -1802 (governing judicial review).
¶44 	Under the governing statutes, records and documents in a
procurement action are subject to specific limitations. See supra
¶¶ 37–39. And as applicable here, the key limitation imposed by
our legislature is that the protest appeal record is to contain only
those documents that “the protest officer relied upon in reaching
[his or her] decision.” See id. § 63G-6a-1601.5(3)(b) (emphasis
added). So, under the statutory scheme, a protest officer, in
compiling the protest appeal record, need only include the
records that he or she relied upon in rendering a decision, along

WellSky Corp. v. Procurement Policy Board
20250869-CA 	21 	2026 UT App 12
with the other records specified in the statute’s definition. See id.
§ 63G-6a-1601.5(3). The procurement statutes—for better or for
worse—do not allow a protestor to test the veracity of the officer’s
record-compilation choice by gaining access to all documents in
the solicitation file. In this statutory scheme, a protest officer—in
compiling the protest appeal record—is able to make some
choices that, in some quarters, might be seen as “cherry-picking.”
But allowing the protest appeal record to be compiled in this way
is a policy choice, and WellSky does not suggest that other statutes
or constitutional provisions operate to limit our legislature’s
policy choices in this regard. We are therefore not at liberty to
second-guess the policy decision, made by our legislature, to
impose (potentially quite serious) limitations on a protestor’s
ability to access the entire procurement file. WellSky’s remedy, if
it is dissatisfied with this statutory scheme, is to seek redress in
the legislature.
¶45 	WellSky also resists our conclusion by relying on JLPR LLC
v. Procurement Policy Board, 2021 UT App 52, 492 P.3d 784, and
arguing that the protest appeal record should have included
everything in the solicitation file that the Officer reviewed. In so
arguing, WellSky quotes a footnote from JLPR, in which we stated
that the “protest appeal record transmitted to” the Board in that
case “should have included the contents of the solicitation file that
the [protest officer] reviewed in reaching his decision.” Id. ¶ 21 n.6
(cleaned up). We are unpersuaded.
¶46 	In JLPR, we addressed a different kind of protest appeal
record issue than the one raised here; in particular, we did not
address whether specific records belonged in the protest appeal
record based on the officer’s review or reliance on the record. Id.
In that case, a protestor-appellant attempted to attach seventeen
exhibits to its appellate briefs, but “almost none of the information
contained in these attachments was in the administrative record
submitted to the [protest officer] and to the Board.” Id. ¶ 12. The
protestor “did not include exhibits or attachments supporting its

WellSky Corp. v. Procurement Policy Board
20250869-CA 	22 	2026 UT App 12
arguments” in its initial protest “despite bearing the burden to
provide facts and evidence supporting its claims.” Id. ¶ 21. Thus,
the 	“protest 	appeal 	record” 	“did 	not 	contain 	most 	of 	the
materials” the protestor later attached to its appellate briefs. Id. In
rejecting the protestor’s attempt to include those documents in the
record submitted to us, we explained that, rather than simply
attaching the exhibits to the briefs, there was a proper channel
through 	which 	the 	protestor 	could 	have 	supplemented 	the
record—a channel that the protestor did not take. See id. ¶ 20
(explaining that “parties may not simply attach new documents
to their appellate briefs without first obtaining permission to
supplement the record on appeal”).
¶47 	We did note, however, that one of the attachments—the
contract award justification record—should have been included
in the protest appeal record. See id. ¶ 21 n.6. We explained in a
footnote that the “protest appeal record transmitted to the Board
should have included the contents of the solicitation file that the
[protest officer] reviewed in reaching his decision.” Id. (cleaned
up). But we then explained that the agency had conceded that the
award justification document should have been included in the
protest appeal record. See id. And “[g]iven this concession,” we
considered the award justification document “to be part of the
record 	on 	appeal, 	and 	a 	document 	that 	we 	may 	properly
consider.” Id. Whether that document had been relied upon (or,
instead, merely reviewed) by the protest officer or the Board was
not at issue in JLPR, and we took the agency at its word when it
conceded that the document belonged in the protest appeal
record. See id.
¶48 	Here, by contrast, the Division asserts that the protest
appeal record submitted to us already contains all the documents
relied upon by the Officer and the Board. And the Division has
supported this argument with the Officer’s sworn declaration.
The Division has not conceded that the protest appeal record is
lacking in any way or that it should contain any of the records that

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20250869-CA 	23 	2026 UT App 12
WellSky asserts should be part of the protest appeal record. And
we clarify that our comment in JLPR—that “the protest appeal
record 	transmitted 	to 	the 	Board 	should 	have 	included 	the
contents of the solicitation file that the [protest officer] reviewed
in reaching his decision,” see id. (cleaned up)—should not be taken
to mean that, in every case, the entirety of the procurement file
should be included in the protest appeal record. As discussed, the
contents of that file are dictated by statutory requirements, and—
as relevant here—those requirements state that the protest appeal
record includes not necessarily the whole file but only those items
that “the protest officer relied upon in reaching” the decision at
issue. See Utah Code § 63G-6a-1601.5(3)(b) (emphasis added).
¶49 	In sum, the protest appeal record is defined by statute, and
only records relied upon by the protest officer in rendering his or
her decision are to be included in the protest appeal record, along
with the other specified records. See id. § 63G-6a-1601.5(3). If a
subsequent appeal to the Board or request for judicial review is
undertaken in this case, these are the rules that should be followed
in compiling the protest appeal record.
CONCLUSION
¶50 	The Officer and the Board dismissed WellSky’s protest
after considering evidence in the record but without holding a
hearing. That action was not authorized by the statutes governing
the procurement process. Accordingly, we set aside the Board’s
decision dismissing WellSky’s protest and send the matter back to
the Division for further proceedings, which should include a
hearing. And in subsequent proceedings, the protest appeal
record should be compiled consistent with the procurement
statutes and this opinion.