202 2 UT 24

IN THE


## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

ICS C ORRECTIONS , I NC

. , Petitioner

,

v.

T HE U TAH P ROCUREMENT P OLICY B OARD 1

Respondent

.

No. 2020 0930
Heard October 18 , 202 1 Filed June 23

, 202 2

On Certi orari 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. Peterso n, Salt Lake City, for respondent

Global Tel*Link Corporation
Sean D. Reyes, Att‘y Gen., Stanford E. Purser, Dep uty Solic. Gen.,

Salt Lake City

, for respondent State of Utah

J USTICE P ETERSEN authored the opinion of the Court, in which
C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE , J USTICE

P EARCE , and J USTICE H IMONAS  joined

. J USTICE H AGEN 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 : G LOBAL T EL *L INK C ORPORATION , J ARED G ARDNER , S TATE OF U TAH D IVISION OF P URCHASING AND G ENERAL S ERVICES , C HRISTOPHER H UGHES , and
S TATE OF U TAH

.

 Justice Himonas sat on this case and voted prior to his retirement on March 1, 2022.ICS C ORR

. v

. P ROCUREMENT P OL ‘ Y B D

. Opinion of the Court

2 J USTICE P ETERSEN , opinion of the Court:

INTRODUCTION
CenturyLink Public Communications provided ¶1 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 ser vice, and it
awarded a multi

- year tele communications contract to another
bidder

— Global Tel*Link Corporation (GTL). CenturyLink protested the decision to t he D ivision . And the Division rejected
the protest on the merits ( p rotest d ecision)

. CenturyLink appealed
th e protest decision to the Utah Procurement Policy Board (the Board). But t he 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. U TAH C OD E § 63G

- 6a

- 1702(2)(b)(ii); U TAH A DMIN

. C ODE 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. T he Board found this to be insufficient.
CenturyLink appealed the dismissal to the court of ¶2 appeals

. The court of appeals ultimately declined to disturb the
Board‘s decision

, holding that the statutory requirements outlined

in the relevant section s 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. T he

court concluded that because CenturyLink had failed to strictly comply with the statutory requirement that a copy of the prote st 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.

The case is now before us on certiorari. While this case ¶3 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 peti tioner before
us on certiorari.
We acknowledge ICS‘s argument that substantial ¶4 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 b ound by the language of the applicable statute. And the Legislature hasC ite 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 it s notice of appeal within the appeal deadline. Accordingly, we

must affirm.

BACKGROUND

In August 2019, the State of Utah , through its Division of ¶5 Purchasing and General Services, solicited competitive bids for the provision of inmate tele communication 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

. CenturyLink protested the award

, and GTL moved to ¶6
intervene. T he protest officer declin ed 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 autho rity in awarding the contract to
GTL.

E xactly seven days after the Division issued the protest ¶7 decision

, CenturyLink submitted a notice of appeal to the Board.
See U TAH C ODE § 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 ].‖ ).

O n e business day later, the Board Chair confirmed ¶8 receipt of CenturyLink ‘s notice of appeal, but noted he was
unable to locat e the protest decision that, under Utah Code
sub section 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.

T he Board dismissed the appeal

. It noted that consistent ¶9
with Utah Code sub section 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 1 702 (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 determinesICS C ORR

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. P ROCUREMENT P OL ‘ Y B D

. Opinion of the Court

4 that the .

. . appeal .

. . fails to comply with any of the requirements listed in S ubsection 5(b)(i)

. ‘ ‖ (Quoting U TAH C ODE § 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 requiremen ts listed in
subsection 1702 ( 5 ) (b)(i)

. See U TAH C ODE § 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.
CenturyLink appealed the Board‘s decision to the court ¶10 of appeals

. Relying on precedent from this court, i t argued that substantial compliance, rather than strict compliance, was
sufficient to avoid dis missal 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 decisi on one business day after filing its notice of appeal

. ICS Corr. Inc. , 2020 UT App 159, ¶ 6.
The court of appeals found CenturyLink ‘s argument ¶11 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. I d. ¶ 8 (quoting U TAH C ODE § 63G

- 6a

- 1702(5)(b)). It therefore held, in accordance with
the relevant statutory standard of review , that the Board hadC ite 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.
We granted certiorari to consider w hether the Court of ¶12 Appeals erred in affirming the Procurement Policy Board‘s
dismissal of CenturyLink‘s

— now ICS‘s

— appeal.
We exercise jurisdiction pursuant to Utah Code section ¶13
78A

- 3

- 102(3)(a)

. STANDARD OF REVIEW

―On certiorari, this court reviews the dec ision of the court ¶14 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
alteration s in original) (citation omitted).

Relevant here, the court of appeals ―may not overturn a ¶15 finding, dismissal, or decision‖ of the Board ―unless the finding, dismissal, or decision, is arbitrary and capricious or clearly
erroneous.‖ U TAH C ODE § 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.‖ U TAH A DMIN

. C ODE 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 (Uta h 1987)

. ANALYSIS

Section 1702 of the Utah Procurement Code

, subject to ¶16 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. U TAHICS C ORR

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. P ROCUREMENT P OL ‘ Y B D

. Opinion of the Court

6 C ODE § 63G

- 6a

- 1702(2)(a)

, - 1702( 2 )(a)(i)

. S ubsec tion 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

- 1 702(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.
ICS argues that the court of appeals was wrong in ¶17 holding that strict compliance with th is 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 B onds & 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

― 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 .‖ Id. (citation omitted) (internal quotation marks omitted)

. That case goes on to explain that ―[s]trict compliance, on th e 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)

. ICS contends that under this precede nt
, substantial ¶18 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 appe al, it substantially complied with the
relevant requirement. Accordingly, ICS asks us to reverse the court of appeals and reinstate the appeal before the Board.

GTL argues that ICS‘s reliance on the se guidelines is ¶19 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 wri tten protest decision,‖C ite as: 2022 UT 24
Opinion of the Court

7 U TAH C ODE § 63G

- 6a

- 1702(2)(b)(ii)

— which the Legislature has explicitly define d as ―mean[ing] that an action is required or mandatory.‖ ( Quoting U TAH C ODE § 6 8

- 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 U TAH C ODE § 63G

- 6a

- 1702(2)(b)
and U TAH A DMIN

. C ODE r. 33

- 17

- 101.5( 1)(b)(iii) respectively

. Finally, GTL argues that the legislature‘s inclusion of a n explicit

consequence for failure to append the written protest decision

— by directing the appointing officer to dismiss any noncompliant appeal

— indicates that strict complia nce is required

. See U TAH C ODE § 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

. When determining whether a statute demands strict ¶20 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. R ather, 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 d id not clearly err n or act arbitrarily in dismissing the appeal. We n ote 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, w e need not address this arg ument, because we do not find that the Board made a legal error in dismissing ICS ‘s notice of appeal.ICS C ORR

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. P ROCUREMENT P OL ‘ Y B D

. Opinion of the Court

8 Much of the debate between the parties centers on ¶21 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

. U TAH C ODE § 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.

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

. First, within seven days after receiving the written notice ¶23 of appeal, the chair of the board must ―submit a written request to the protest officer for the protest appeal record .‖ U TAH C ODE § 63G

- 6a

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

r eceives the protest appeal record from the protest officer,‖
subsection 1702 (5)(b) directs th at ― the appointing officer shall

. . . dismiss the appeal, without holding a hearing [,] if the appointing
officer determines that the

. . . appeal

. . . fails to c omply with any of the requirements‖ in subsection s 1702 ( 2)

– (4) or section
63G

- 6a

- 1703. 3 U TAH C ODE § 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 s even

- 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 .

. .)C ite as: 2022 UT 24
Opinion of the Court

9 ( emphas e s added )

. 4 As discussed, these requirements include appending a copy of the written protest decision to the notice of appeal. And b y unequivocally directing the appointing officer to
dismiss an y appeal that does not meet this requirement

, the

statute makes clear that anything short of strict compliance will
result in dismissal.

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

We note that ICS‘s argument to the contrary relies upon ¶25
caselaw that provides a fra mework for gap

- fill ing 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 involve d 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, 2 2 , 289 P.3d 4 3 7 ( involving rule 69C(c) of the Utah Rules of Civil Procedure, which did not

receiving the written notice of appeal

. U TAH C ODE § 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 subse ctions 1702(2)

– (4) or section 63G

- 6a

- 1703

. U TAH C ODE § 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), whic h the parties have misconstrued.

4 As noted, i n this case, the chair and the appointing officer were the same person.ICS C ORR

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. P ROCUREMENT P OL ‘ Y B D

. 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 co urt 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 C n ty.
, 575 P .2d 705

, 705

, 70 7 (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 require ments‖)

. So this line of cases is instructive in instances where the statutory
scheme lacks a n 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.

We conclude that the plain language of the statute ¶26 required the Board to dismiss ICS‘s appeal once it determined that
ICS had failed to file a notice of appeal wit hin 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

We hold that where the legislature has dictated a clear ¶27 consequence for the failure to comply with a requirement , th e plain language controls and strict compliance with the statutory

term , or the resulting consequence for non

- compliance , is required. A nd 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 c orrectly held
that the Board had therefore neither clearly erred nor acted arbitrarily or capriciously in dismissing ICS ‘s appeal on that basis

. We affirm.