Innovations-Magazine-June-July-2022 - 5

POLICY PERSPECTIVES
* erred in ruling that JG City failed
to demonstrate sufficient prejudice
to require reversal; and
* erred in ruling that JG City waived its
equal protection challenge by presenting
it to the Board in the first instance
without prior presentation to the hearing
examiner, and in holding that the statute
is not facially unconstitutional, regardless.
Court's Analysis
During appellate review of a Common Pleas
Court decision from an administrative agency
decision, a court must determine whether the
Common Pleas Court abused its discretion.
According to case law cited in the opinion,
the term " abuse of discretion " means more
than an error of law or judgment, but implies
that the court's " attitude is unreasonable,
arbitrary, or unconscionable. " Applying this
standard, the Court of Appeals of Ohio (the
" Court " ) considered JG City's arguments.
JG City argued that the Board failed
to comply with the law because it allowed
application evaluators to award odd-number
scores, rather than limiting them to the evennumber
scores shown in the RFA instructions,
resulting in an 11-point grade scale instead of
a six-point grade scale. JG City also asserted
that the application evaluators were not given
criteria for awarding odd-number scores,
as the RFA instructions stated " [s]corable
question responses will be evaluated using
a standard [zero]-10 scoring framework as
illustrated in the table below along with the
evaluation criteria used to assign each score. "
The table provided only an even-numbered
scoring framework. Therefore, JG City
argued that the odd numbers in the scoring
system violated the Ohio Administrative
Code, and JG City's score under the
system was not in accordance with law.
Analyzing the argument, the Court cited
case law precedent for the general principle
that a public entity is required to substantially
comply with the conditions it sets for itself in
a request for proposals or RFA. As such, the
Board was bound to " substantially comply "
with the conditions in its RFA process. If the
Board substantially complied with the criteria,
then its denial of JG City's application was in
accordance with law. The Court determined
that the Board substantially complied with
the criteria and scoring procedure set forth in
the RFA instructions. The Court found that,
although the Board awarded odd numbers in
the scoring system, the process followed by the
Board satisfied its obligation to substantially
comply with the conditions set forth in the
RFA process. While the RFA instructions
provided that the scoring framework would
be " illustrated " in the table that followed
and the table included only even-numbered
scoring examples, the Court determined that
the word " illustrate " can mean " to make clear
by giving examples or instances. " Thus, the
table did not preclude the Board from allowing
evaluators to award odd-numbered scores.
Moreover, considering the evaluation
process in its entirety, the Court determined
that the Board substantially complied with
the criteria and scoring procedure. Evaluators
were required to award whole number scores
ranging from zero to 10. The scores were then
averaged, and the averages were combined to
compute the total score. Based on the results
of the scoring, the Board granted licenses to
the highest scoring applicants in each district,
subject to the limitations on license awards to
a single entity. When an applicant exceeded
the quantity thresholds for licensure, the Board
awarded the license to the next highest scoring
applicant. Therefore, considered as a whole,
the Court determined that the process satisfied
the Board's obligations to " award dispensary
licenses on a competitive basis using the
criteria set out in the notice for applications. "
JG City also argued that the Board failed
to establish that the evaluators correctly
determined its application submission
warranted a lower score than the score given
to the next best application. In response,
the Court determined that the Board's
process for scoring applications for licenses
involved subjective determinations because
it required evaluators to assign numerical
scores to narrative responses. Although JG
City asserted that the Board failed to show
that the evaluators could reliably discern a
1.6% difference between its application and
the next highest scoring application, the
Court determined that JG City failed to claim
it received an incorrect score on a specific
question, and there was reliable testimony
explaining how the evaluators applied the
scoring system generally. Therefore, the
Court found that the trial court did not
abuse its discretion by finding the Board's
order was supported by reliable evidence.
Based on the foregoing, the Court overruled
JG City's first and second allegations.
The Court determined the third and fourth
allegations to be moot due to the resolution
of the first and second allegations. Finally,
JG City's fifth allegation challenged the trial
court's conclusion that JG City waived its
constitutional challenge to Ohio Revised Code
(ORC) 3796.10(C), which required the Board
to " issue not less than fifteen per cent of retail
dispensary licenses to entities that are owned
and controlled by United States citizens who
are residents of this state and are members of
economically disadvantaged groups, " as defined
in the statute, by failing to raise it before the
hearing examiner. The Court determined
that JG City failed to demonstrate ORC
3796.10(C) caused the denial of its application;
therefore, JG City could not establish standing
to challenge the constitutionality of the statute.
In conclusion, the Court affirmed the
Franklin County Court of Common Pleas'
judgment, overruling JG City's first, second,
and fifth allegations and finding its third and
fourth allegations to be moot.
Conclusion
When undertaking an RFA process, boards
of pharmacy should be aware that the
board's decision may be challenged if it fails
to substantially comply with the conditions
it sets for itself in a request for proposals or
RFA. Boards of pharmacy should understand
the burden of proof necessary to sustain any
decisions regarding the process and work
to adhere to the evaluation criteria or the
scoring system established for the program.
While it may seem that the board has broad
discretion to make decisions regarding
the application process, those decisions
should be tailored to ensure that they are
supported by the criteria and instructions
provided by rule or other guidance. If not,
it could provide an avenue for an applicant
to challenge the board's award process.
Please note, the opinions and views expressed
by Faegre Drinker Biddle & Reath do not
necessarily reflect the official views, opinions,
or policies of NABP or any member board
unless expressly stated.
JUNE/JULY 2022 | 3
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