2022 UT 24

IN THE

SUPREME COURT OF THE STATE OF UTAH

ICS CORRECTIONS, INC.,

Petitioner,

v.

THE UTAH PROCUREMENT POLICY BOARD1

Respondent.

No. 20200930

Heard October 18, 2021

Filed June 23, 2022

On Certiorari to the Utah Court of Appeals

Attorneys:

James W. Anderson, Walter A. Romney, Jr., Timothy R. Pack, 

Trenton L. Lowe, Salt Lake City, for petitioner

Brent O. Hatch, Tera J. Peterson, Salt Lake City, for respondent

Global Tel*Link Corporation

Sean D. Reyes, Att‘y Gen., Stanford E. Purser, Deputy Solic. Gen., 

Salt Lake City, for respondent State of Utah

JUSTICE PETERSEN authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE 

PEARCE, and JUSTICE HIMONASjoined.

JUSTICE HAGEN became a member of the Court on May 18, 2022, 

after oral argument in this matter, and accordingly did not 

participate.

__________________________________________________________

1 The other named Respondents are: GLOBAL TEL*LINK 

CORPORATION, JARED GARDNER, STATE OF UTAH DIVISION OF 

PURCHASING AND GENERAL SERVICES, CHRISTOPHER HUGHES, and

STATE OF UTAH.



Justice Himonas sat on this case and voted prior to his 

retirement on March 1, 2022.
ICS CORR. v. PROCUREMENT POL‘Y BD.

Opinion of the Court

2

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 CenturyLink Public Communications provided 

telecommunication services to inmates housed by Salt Lake 

County and the Utah Department of Corrections. But in August 

2019, the Utah Division of Purchasing and General Services (the 

Division) solicited competitive bids for this service, and it 

awarded a multi-year telecommunications contract to another 

bidder—Global Tel*Link Corporation (GTL). CenturyLink

protested the decision to the Division. And the Division rejected

the protest on the merits (protest decision). CenturyLink appealed 

the protest decision to the Utah Procurement Policy Board (the 

Board). But the Board dismissed the appeal due to a procedural

failure: CenturyLink had failed to include ―a copy of [the] written 

protest decision‖ with its notice of appeal. UTAH CODE

§ 63G-6a-1702(2)(b)(ii); UTAH ADMIN. CODE r. 33-17-101.5(1)(b)(iii). 

CenturyLink corrected the error one business day after filing the 

notice of appeal, which was one day after the expiration of the 

appeal deadline. The Board found this to be insufficient.

¶2 CenturyLink appealed the dismissal to the court of 

appeals. The court of appeals ultimately declined to disturb the 

Board‘s decision, holding that the statutory requirements outlined 

in the relevant sections of the Utah Procurement Code compel

strict compliance with their terms. ICS Corr. Inc. v. Utah 

Procurement Pol’y Bd., 2020 UT App 159, ¶ 8, 478 P.3d 1046. The 

court concluded that because CenturyLink had failed to strictly 

comply with the statutory requirement that a copy of the protest 

decision be appended to the notice of appeal submitted to the 

Board, the Board had neither clearly erred nor acted arbitrarily or 

capriciously in dismissing the appeal. Id. ¶ 9.

¶3 The case is now before us on certiorari. While this case 

was pending in the court of appeals, CenturyLink was sold and 

renamed ICS Corrections, Inc. (ICS). CenturyLink moved to 

substitute ICS as the appellant in the matter, and the court of 

appeals granted that motion. Id. ¶ 3. So ICS is the petitioner before 

us on certiorari.

¶4 We acknowledge ICS‘s argument that substantial 

compliance should be sufficient in this circumstance, where the

noncompliance at issue was a procedural processing error, 

CenturyLink remedied the error within one business day, and it 

was therefore arguably harmless. But we are bound by the 

language of the applicable statute. And the Legislature has 
Cite as: 2022 UT 24

Opinion of the Court

3

unequivocally required the Board to dismiss an appeal where the 

appellant has failed to attach a copy of the protest decision to its 

notice of appeal within the appeal deadline. Accordingly, we 

must affirm.

BACKGROUND

¶5 In August 2019, the State of Utah, through its Division of 

Purchasing and General Services, solicited competitive bids for 

the provision of inmate telecommunication services to Salt Lake 

County and the Utah Department of Corrections. CenturyLink, 

the incumbent provider, submitted a bid, but the Division

awarded the contract to GTL.

¶6 CenturyLink protested the award, and GTL moved to 

intervene. The protest officer declined to hold a hearing, instead 

dismissing CenturyLink‘s protest on the grounds that the

Procurement Code grants substantial discretion to the State in 

selecting potential contractors, and the record made clear that the 

State had acted within its authority in awarding the contract to 

GTL.

¶7 Exactly seven days after the Division issued the protest 

decision, CenturyLink submitted a notice of appeal to the Board.

See UTAH CODE § 63G-6a-1702(2)(a) (―Subject to [certain 

requirements], a protestor may appeal to the board a protest 

decision of a procurement unit . . . by filing a written notice of 

appeal . . . within seven days after . . . the day on which the 

written decision [is issued].‖).

¶8 One business day later, the Board Chair confirmed 

receipt of CenturyLink‘s notice of appeal, but noted he was

unable to locate the protest decision that, under Utah Code 

subsection 63G-6a-1702(2)(b)(ii), should have ―accompanied‖ the

notice. Later that day, CenturyLink submitted an updated notice

of appeal containing the protest decision as an exhibit.

¶9 The Board dismissed the appeal. It noted that consistent 

with Utah Code subsection 63G-6a-1702(2)(a), CenturyLink had 

submitted a written notice of appeal that was received within the 

seven-day deadline. But contrary to subsection 1702(2)(b)(ii) and 

Utah Administrative rule 33-17-101.5(1)(b)(iii), CenturyLink had

―failed to include the required copy of the written protest decision 

issued by the protest officer.‖ The Board then explained that 

subsection 1702(5)(b)(ii) of the statute compels the ―appointing 

officer,‖ the Board Chair in this case, to ―dismiss the appeal, 

 ̳without holding a hearing[,] if the appointing officer determines 
ICS CORR. v. PROCUREMENT POL‘Y BD.

Opinion of the Court

4

that the . . . appeal . . . fails to comply with any of the 

requirements listed in Subsection 5(b)(i).‘‖ (Quoting UTAH CODE

§ 63G-6a-1702(5)(b)(ii)(A).) And the Board clarified that 

compliance with subsection 1702(2)(b)(ii)—under which ―[a] 

notice of appeal . . . shall . . . be accompanied by a copy of any 

written protest decision‖—is among the requirements listed in

subsection 1702(5)(b)(i). See UTAH CODE § 63G-6a-1702(2)(b)(ii), 

1702(5)(b)(i). Accordingly, because CenturyLink had failed to 

provide the Board with a copy of the protest decision within the 

filing deadline of November 22, 2019, the Board concluded it had 

no choice but to dismiss the appeal.

¶10 CenturyLink appealed the Board‘s decision to the court 

of appeals. Relying on precedent from this court, it argued that 

substantial compliance, rather than strict compliance, was 

sufficient to avoid dismissal because subsection 1702(2)(b)(ii) is 

―directory, rather than mandatory.‖ ICS Corr. Inc. v. Utah 

Procurement Pol’y Bd., 2020 UT App 159, ¶ 6, 478 P.3d 1046

(referencing Aaron & Morey Bonds & Bail v. Third Dist. Court, 

2007 UT 24, ¶ 7, 156 P.3d 801 (―[S]ubstantial compliance with a 

statutory provision is adequate when the provision is directory, 

meaning it goes merely to the proper, orderly and prompt 

conduct of the business, and the policy behind the statute has 

been realized.‖) (emphasis added) (citation omitted) (internal 

quotation marks omitted)); see also Kennecott Copper Corp. v. Salt 

Lake Cnty, 575 P.2d 705, 706 (Utah 1978) (―Generally those 

directions which are not of the essence of the thing to be done, . . . 

and by the failure to obey no prejudice will occur to those whose 

rights are protected by the statute, are not commonly considered 

mandatory.‖) (emphasis added). And CenturyLink argued that it 

had substantially complied with the provision by providing the 

Board with the protest decision one business day after filing its

notice of appeal. ICS Corr. Inc., 2020 UT App 159, ¶ 6.

¶11 The court of appeals found CenturyLink‘s argument 

unpersuasive. It reasoned that because subsection 1702(5)(b)(ii) of 

the statute ―unequivocally direct[s] the appointing officer to 

dismiss the appeal if the appeal  ̳fails to comply with any of the 

requirements‘ in section 63G-6a-1702(2)–(4) or -1703,‖ including 

the requirement at subsection 1702(2)(b)(ii) that a copy of the 

protest decision accompany the notice of appeal, the plain 

language of the statute makes clear the intention of the legislature

to make those requirements mandatory. Id. ¶ 8 (quoting UTAH 

CODE § 63G-6a-1702(5)(b)). It therefore held, in accordance with 

the relevant statutory standard of review, that the Board had 
Cite as: 2022 UT 24

Opinion of the Court

5

neither clearly erred nor acted arbitrarily or capriciously in 

dismissing CenturyLink‘s appeal. ICS Corr. Inc., 2020 UT App 159,

¶ 9.

¶12 We granted certiorari to consider whether the Court of 

Appeals erred in affirming the Procurement Policy Board‘s 

dismissal of CenturyLink‘s—now ICS‘s—appeal.

¶13 We exercise jurisdiction pursuant to Utah Code section 

78A-3-102(3)(a).

STANDARD OF REVIEW

¶14 ―On certiorari, this court reviews the decision of the court 

of appeals for correctness, giving no deference to its conclusions 

of law.‖ Donovan v. Sutton, 2021 UT 58, ¶ 15, 498 P.3d 382 (citation 

omitted). ICS argues that this is the only standard pertinent to our 

review. But ―[t]he correctness of the court of appeals‘ decision 

turns, in part, on whether it accurately reviewed the [lower 

tribunal‘s] decision under the appropriate standard of review.‖ 

State v. Evans, 2021 UT 63, ¶ 20, 500 P.3d 811 (citation omitted). ―In 

other words, [i]n reviewing the court of appeals‘ decision[,] we 

apply the same standard of review that it would apply in 

reviewing the decision of the [lower tribunal].‖ Drew v. Pac. Life 

Ins. Co., 2021 UT 55, ¶ 34, 496 P.3d 201 (first and second 

alterations in original) (citation omitted).

¶15 Relevant here, the court of appeals ―may not overturn a 

finding, dismissal, or decision‖ of the Board ―unless the finding, 

dismissal, or decision, is arbitrary and capricious or clearly 

erroneous.‖ UTAH CODE § 63G-6a-1802(4)(c). A decision in this 

context is arbitrary and capricious if ―[t]here is no reasonable 

basis for the . . . decision and, given the same facts and evidence

. . ., a reasonable person could not have reached the same 

decision.‖ UTAH ADMIN. CODE r. 33-17-101.10(1)(b). A decision is 

clearly erroneous if it is ―against the clear weight of the evidence, 

or if the appellate court otherwise reaches a definite and firm 

conviction that a mistake has been made . . . .‖ State v. Walker, 

743 P.2d 191, 193 (Utah 1987).

ANALYSIS

¶16 Section 1702 of the Utah Procurement Code, subject to 

section 1703, provides a process for appealing to the Board a 

protest decision of a procurement unit. It states that ―a protestor 

may appeal to the board a protest decision of a procurement unit 

. . . by filing a written notice of appeal with the chair of the board 

within seven days‖ after the protest decision is issued. UTAH 
ICS CORR. v. PROCUREMENT POL‘Y BD.

Opinion of the Court

6

CODE § 63G-6a-1702(2)(a), -1702(2)(a)(i). Subsection 1702(2)(b) 

then provides that ―[a] notice of appeal . . . shall: (i) include the 

address of record and email address of record of the party filing 

the notice of appeal; and (ii) be accompanied by a copy of any written 

protest decision.‖ Id. § 63G-6a-1702(2)(b)(i)-(ii) (emphasis added).

The dispute in this case centers on whether the latter requirement

in subsection 1702(2)(b)(ii) compels strict or merely substantial

compliance.

¶17 ICS argues that the court of appeals was wrong in 

holding that strict compliance with this provision is necessary to 

avoid dismissal of an appeal to the Board. ICS relies upon 

precedent in which we have set forth a ―general guide‖ to 

distinguish between statutes requiring strict versus substantial 

compliance. Aaron & Morey Bonds & Bail v. Third Dist. Ct., 

2007 UT 24, ¶ 7, 156 P.3d 801. Among other cases, ICS cites Aaron 

& Morey Bonds & Bail v. Third Dist. Ct., which states that 

―substantial compliance with a statutory provision is adequate 

when the provision is directory, meaning it goes merely to the 

proper, orderly and prompt conduct of the business, and the 

policy behind the statute has been realized.‖ Id. (citation omitted)

(internal quotation marks omitted). That case goes on to explain 

that ―[s]trict compliance, on the other hand, is required when 

failure to adhere to the statute will affect a substantive right of one 

of the parties and possibly prejudice that party.‖ Id. at ¶ 8 (citation 

omitted) (internal quotation marks omitted).

¶18 ICS contends that under this precedent, substantial 

compliance is sufficient here because: (1) the requirement at issue

relates solely to the administration of business before the agency

and it is therefore directory; (2) the policy animating the statute 

was not frustrated by CenturyLink‘s failure to include the protest 

decision with its notice of appeal; and (3) no prejudice resulted to 

either the Board or GTL from the omission. ICS argues that by 

providing a copy of the protest decision one business day after it 

filed its notice of appeal, it substantially complied with the

relevant requirement. Accordingly, ICS asks us to reverse the 

court of appeals and reinstate the appeal before the Board.

¶19 GTL argues that ICS‘s reliance on these guidelines is 

misplaced. GTL contends that we need not look past the plain 

language of the statute to determine that the requirement here

demands strict compliance. Specifically, GTL points to the 

statute‘s use of the word ―shall‖— ―A notice of appeal . . . shall: . . . 

(ii) be accompanied by a copy of any written protest decision,‖ 
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Opinion of the Court

7

UTAH CODE § 63G-6a-1702(2)(b)(ii)—which the Legislature has 

explicitly defined as ―mean[ing] that an action is required or 

mandatory.‖ (Quoting UTAH CODE § 68-3-12(1)(j).) GTL also notes 

that the word ―shall‖ is present both in the Utah Procurement 

Code and in the administrative rules governing appeals from the 

Division to the Board, and it argues that this provides further 

evidence of legislative intent. See UTAH CODE § 63G-6a-1702(2)(b) 

and UTAH ADMIN. CODE r. 33-17-101.5(1)(b)(iii) respectively.

Finally, GTL argues that the legislature‘s inclusion of an explicit

consequence for failure to append the written protest decision—

by directing the appointing officer to dismiss any noncompliant

appeal—indicates that strict compliance is required. See UTAH 

CODE § 63G-6a-1702(5)(b). On these bases, GTL argues that the 

court of appeals correctly affirmed the Board‘s dismissal.

2 We 

conclude that GTL‘s final argument is dispositive here.

¶20 When determining whether a statute demands strict

compliance or permits substantive compliance with a particular 

requirement, the first step is to examine the statutory language 

itself. ―When interpreting a statute, our primary objective is to 

ascertain the intent of the legislature.‖ McKitrick v. Gibson, 

2021 UT 48, ¶ 19, 496 P.3d 147 (citation omitted). Because the plain 

language of the statute offers the best evidence of legislative

intent, we begin with the statutory text. Rosser v. Rosser, 

2021 UT 71, ¶ 42, 502 P.3d 294. But we do not interpret statutory

terms in isolation. McKitrick, 2021 UT 48, ¶ 19. Rather, we 

―determine the meaning of the text given the relevant context of 

the statute . . . including . . . the structure and language of the 

statutory scheme[].‖ Id. (citation omitted).

__________________________________________________________

2 GTL also argues that even if we were to determine that 

substantial compliance with the statute is sufficient, the court of 

appeals correctly affirmed the Board because, in the absence of a 

―prior decision instructing the Board that the requirement to 

attach a written protest decision to a notice of appeal is directory 

and not mandatory,‖ the Board did not clearly err nor act 

arbitrarily in dismissing the appeal. We note that GTL did not 

analyze how a mistake of law by the Board corresponds with the 

clearly erroneous or arbitrary and capricious standard of review. 

However, we need not address this argument, because we do not 

find that the Board made a legal error in dismissing ICS‘s notice of 

appeal.
ICS CORR. v. PROCUREMENT POL‘Y BD.

Opinion of the Court

8

¶21 Much of the debate between the parties centers on 

whether the term ―shall‖ in subsection 1702(2)(b)(ii) is indicative 

of a mandatory or a directory requirement—in other words, 

whether strict compliance is mandatory, or substantial compliance 

is acceptable. UTAH CODE § 63G-6a-1702(2)(b)(ii) (―A notice of 

appeal . . . shall: . . . (ii) be accompanied by a copy of any written 

protest decision.‖(emphasis added)). But while, as GTL notes, the 

legislature has explicitly stated that ―[s]hall means that an action 

is required or mandatory,‖ id. § 68-3-12(1)(j), this does not

necessarily tell us whether substantial compliance may be 

sufficient to avoid dismissal. Rather, it simply informs us that the 

protesting party must comply with the provision.

¶22 But as the court of appeals astutely observed, after 

section 1702 ―outlines the requirements for filing an appeal with 

the Board, it continues with instructions for how the Board is to 

process the appeal.‖ ICS Corr. Inc. v. Utah Procurement Pol’y Bd., 

2020 UT App 159, ¶ 8, 478 P.3d 1046. And the statute provides a 

specific consequence for failure to comply with the requirements 

in subsection 1702(2)(b)(ii)—which includes the requirement that 

a copy of the protest decision be included with the notice of 

appeal.

¶23 First, within seven days after receiving the written notice 

of appeal, the chair of the board must ―submit a written request to 

the protest officer for the protest appeal record.‖ UTAH CODE

§ 63G-6a-1702(5)(a). Then, ―[w]ithin seven days after the chair 

receives the protest appeal record from the protest officer,‖ 

subsection 1702(5)(b) directs that ―the appointing officer shall . . .

dismiss the appeal, without holding a hearing[,] if the appointing 

officer determines that the . . . appeal . . . fails to comply with any

of the requirements‖ in subsections 1702(2)–(4) or section 

63G-6a-1703.3 UTAH CODE § 63G-6a-1702(5)(b), -1702(5)(b)(ii)

__________________________________________________________

3 We note that both parties have assumed that the statute 

requires a review by the Board within seven days of the filing of the 

notice of appeal (and subsequent dismissal if that notice of appeal 

does not comply with the statutory requirements). See also ICS 

Corr. Inc. v. Utah Procurement Pol’y Bd., 2020 UT App 159, ¶ 8, 

478 P.3d 1046. But that is incorrect. The statute sets forth two 

successive seven-day periods: First, subsection 1702(5)(a) directs 

the chair of the board to ―submit a written request to the protest 

officer for the protest appeal record‖ within seven days after 

(continued . . .)
Cite as: 2022 UT 24

Opinion of the Court

9

(emphases added).

4 As discussed, these requirements include 

appending a copy of the written protest decision to the notice of 

appeal. And by unequivocally directing the appointing officer to 

dismiss any appeal that does not meet this requirement, the 

statute makes clear that anything short of strict compliance will 

result in dismissal.

¶24 ―Our courts use a  ̳plain meaning‘ approach to statutory 

interpretation.‖ Oliver v. Utah Lab. Comm’n, 2017 UT 39, ¶ 19, 

424 P.3d 22 (citation omitted). Under this approach, we do not 

look beyond the statute‘s plain language ―unless there is 

ambiguity in the statute.‖ Id. So here, it is dispositive that 

subsection 1702(5)(b)(ii) unambiguously directs the appointing 

officer to dismiss any noncompliant appeal, with specific 

reference to the requirement that the appellant provide a copy of 

the Division‘s protest decision alongside the notice of appeal

within the appeal deadline.

¶25 We note that ICS‘s argument to the contrary relies upon 

caselaw that provides a framework for gap-filling where the terms

of a statute are not clear as to the ramification for non-compliance 

with a particular provision. Indeed, none of the cases on which 

ICS relies involved statutes with a clear consequence for the 

failure to comply with the statutory provision implicated. See, e.g.,

Grazer v. Jones, 2012 UT 58, ¶¶ 14, 21, 22, 289 P.3d 437 (involving 

rule 69C(c) of the Utah Rules of Civil Procedure, which did not 

 

receiving the written notice of appeal. UTAH CODE

§ 63G-6a-1702(5)(a). Then, ―[w]ithin seven days after the chair 

receives the protest appeal record from the protest officer,‖ subsection 

1702(5)(b)(i)-(ii) directs the appointing officer to ―review the 

appeal‖ and dismiss it if it fails to comply with the requirements 

in subsections 1702(2)–(4) or section 63G-6a-1703. UTAH CODE

§ 63G-6a-1702(5)(b) (emphasis added). Here, the chair dismissed 

the appeal five days after the filing of the notice of the appeal, and 

the parties do not know if the sequence outlined in these 

subsections was followed. But ICS has not raised an argument 

that its appeal was reviewed and dismissed too quickly, so we do 

not address it further. We make these observations only to clarify 

the review process outlined in subsections 1702(5)(a)–(b), which

the parties have misconstrued.

4 As noted, in this case, the chair and the appointing officer 

were the same person.
ICS CORR. v. PROCUREMENT POL‘Y BD.

Opinion of the Court

10

include a specific repercussion for the deficiency at issue, and rule 

69C(e) which did provide that failure to file a notice of costs

resulted in waiver, but was silent as to when such a notice had to 

be filed); Aaron & Morey Bonds & Bail v. Third Dist. Ct., 2007 UT 24, 

¶ 13, 156 P.3d 801 (holding that a requirement that the court clerk 

include the prosecutor‘s fax number in a notice of nonappearance 

was directory where the clerk‘s failure to comply with the 

requirement was not specified by the statute as a basis for 

exoneration); Kennecott Copper Corp. v. Salt Lake Cnty., 

575 P.2d 705, 705, 707 (Utah 1978) (holding that a deadline was 

directory where the statute included no consequence for the

county commission‘s failure to meet the deadline); Salt Lake City v. 

Haik, 2014 UT App 193, ¶¶ 23, 39, 334 P.3d 490 (affirming the 

district court‘s grant of summary judgment to the city because the 

records sought were protected by GRAMA and ―GRAMA does 

not state the consequences to be applied if the governmental 

entity does not strictly comply with these notice requirements‖). 

So this line of cases is instructive in instances where the statutory 

scheme lacks an explicit consequence for a party‘s failure to 

comply with a given requirement. But that is not the case here, 

where the clear statutory consequence for failure to append the 

protest decision by the filing deadline is dismissal.

¶26 We conclude that the plain language of the statute

required the Board to dismiss ICS‘s appeal once it determined that 

ICS had failed to file a notice of appeal within the applicable 7-day 

deadline that was ―accompanied by [the] written protest 

decision.‖ The Board therefore neither clearly erred nor acted

arbitrarily or capriciously in dismissing the appeal. And the court 

of appeals was correct to uphold the Board‘s dismissal.

CONCLUSION

¶27 We hold that where the legislature has dictated a clear 

consequence for the failure to comply with a requirement, the

plain language controls and strict compliance with the statutory 

term, or the resulting consequence for non-compliance, is 

required. And we affirm based on the plain language of the 

statute here. The court of appeals rightly concluded that Utah 

Code section 63G-6a-1702(5)(b) gives an appointing officer no 

choice but to dismiss a noncompliant appeal. And it correctly held 

that the Board had therefore neither clearly erred nor acted 

arbitrarily or capriciously in dismissing ICS‘s appeal on that basis.

We affirm.