ICS Corrections v. Procurement Policy Board

2020 UT App 159
THE UTAH COURT OF APPEALS
ICS C ORRECTIONS I NC .,
Petitioner,
v.
U TAH PROCUREMENT P OLICY BOARD, G LOBAL TEL*LINK
C ORPORATION , JARED G ARDNER , U TAH DIVISION OF PURCHASING
AND GENERAL S ERVICES , C HRISTOPHER HUGHES , AND
S TATE OF U TAH .
Respondents.
Opinion
No. 20191006-CA
Filed November 19, 2020
Original Proceeding in this Court
James W. Anderson and Taymour B. Semnani,
Attorneys for Petitioner
Brent O. Hatch and Tera J. Peterson, Attorneys for
Respondent Global Tel*Link Corporation
Sean D. Reyes and Brent A. Burnett, Attorneys for
Respondents Utah Procurement Policy Board, Jared
Gardner, Utah Division of Purchasing and General
Services, Christopher Hughes, and State of Utah
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES K ATE A PPLEBY and D AVID N. M ORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	ICS Corrections Inc. (ICS) asks us to review the Utah
Procurement Policy Board’s (the Board) dismissal of its appeal of
a decision of the Utah Division of Purchasing and General
Services 	(the 	Division). 	We 	decline 	to 	disturb 	the 	Board’s
decision.

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BACKGROUND
¶2 	In 2019, the State of Utah solicited competitive bids to
provide inmate telephone services to the Utah Department of
Corrections and Salt Lake County. CenturyLink Inc., through its
wholly owned subsidiary, CenturyLink Public Communications
Inc., 	(collectively, 	CenturyLink) 	submitted 	a 	bid, 	but 	the
Division 	went 	with 	another 	contractor, 	Global 	Tel*Link
Corporation. 	CenturyLink 	protested 	that 	decision, 	but 	the
Division rejected the protest in a written decision (the Protest
Decision). CenturyLink then appealed the Protest Decision to the
Board, but the Board dismissed the appeal because CenturyLink
failed to attach a copy of the Protest Decision to its appeal.
CenturyLink petitioned us to review the dismissal.
¶3 	While the case was pending in this court, CenturyLink
Public 	Communications 	Inc. 	was 	sold 	in 	a 	stock 	purchase
agreement 	and 	renamed 	ICS 	Corrections 	Inc. 	CenturyLink
moved to substitute ICS as the sole petitioner in this case, and
we granted that motion.
ISSUE AND STANDARD OF REVIEW
¶4 	ICS 	asks 	us 	to 	overturn 	the 	Board’s 	dismissal 	of
CenturyLink’s 	appeal. 	We 	“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 Ann. § 63G-6a-1802(4)(c) (LexisNexis
2019).
ANALYSIS
¶5 	Utah Code sections 63G-6a-1702 and -1703 set forth the
requirements for filing an appeal with the Board. One of the
requirements states that the “notice of appeal . . . shall . . . be

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accompanied by a copy of any written protest decision.” Utah
Code Ann. § 63G-6a-1702(2)(b) (LexisNexis 2019).
¶6 	ICS urges us to interpret this provision as directory,
rather than mandatory, and accordingly hold that substantial
compliance with the provision, rather than strict compliance, is
sufficient to avoid dismissal of the appeal. See Aaron & Morey
Bonds & Bail v. Third Dist. Court, 2007 UT 24, ¶ 7, 156 P.3d 801
(“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 still been realized.” (quotation
simplified)). 	ICS 	maintains 	that 	CenturyLink 	substantially
complied by providing a copy of the Protest Decision one
business day after filing the appeal and that the delay did not
prejudice any party.
¶7 	To determine whether strict compliance with a provision
is required, we look to legislative intent. See id. ¶ 9. And “[t]o
determine legislative intent, we turn first to the plain language”
of the statute. Id. Moreover, “[p]ursuant to our rules of statutory
construction,” we interpret a statutory provision “in light of the
statute 	as 	a 	whole 	and 	in 	harmony 	with 	related 	statutory
provisions.” Id.
¶8 	After section 63G-6a-1702 outlines the requirements for
filing an appeal with the Board, it continues with instructions for
how the Board is to process the appeal. Notably, it dictates that
within seven days of receiving an appeal, “the appointing officer
shall . . . dismiss any claim asserted in the appeal, or dismiss the
appeal, without holding a hearing 	if the appointing officer
determines that the claim or appeal, respectively fails to comply
with any of the requirements” 	in section 	63G-6a-1702(2)–(4)
or -1703. Utah Code Ann. § 63G-6a-1702(5)(b) (emphasis added).
By unequivocally directing the appointing officer to dismiss the
appeal 	if 	the 	appeal 	“fails 	to 	comply 	with 	any 	of 	the

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requirements,” 	see 	id. 	(emphasis 	added), 	the 	statute’s 	plain
language makes it clear that the legislature intended to make the
requirements mandatory. Cf. Pugh v. Draper City, 2005 UT 12,
¶¶ 3, 15–17, 114 P.3d 546 (explaining that language in a statute
requiring election officers to remove a candidate’s name from
the ballot if the candidate failed to timely file an interim report of
campaign 	contributions 	and 	expenditures 	supported 	a
determination that the filing deadline was mandatory). And
thus, strict compliance was required. See Moore v. Schwendiman,
750 P.2d 204, 206 (Utah Ct. App. 1988) (“[O]ne must comply
precisely with a mandatory requirement or the transaction or
process is invalidated.”).
¶9 	“Once 	[a] 	statute 	is 	determined 	to 	require 	strict
compliance, all bets are off for any actions other than exactness.”
Salt Lake City Corp. v. Kunz, 2020 UT App 139, ¶ 35. Thus, the
Board 	did 	not 	clearly 	err, 	nor 	did 	it 	act 	arbitrarily 	or
capriciously, in dismissing CenturyLink’s appeal.
CONCLUSION
¶10 	In light of the statutory language, it is clear that the
requirements for filing an appeal with the Board demand strict
compliance. The failure to strictly comply justified the Board’s
dismissal of the appeal. Accordingly, we decline to disturb the
Board’s dismissal decision.