Ics Corr., Inc. v. Utah Procurement Policy Bd.

• Decision Date: 23 June 2022
• Docket Number: 20200930
• Parties: ICS CORRECTIONS, INC., Petitioner, v. The UTAH PROCUREMENT POLICY BOARD , Respondent.
• Court: Utah Supreme Court

513 P.3d 677

ICS CORRECTIONS, INC., Petitioner,

v.The UTAH PROCUREMENT POLICY BOARD ¹ , Respondent.

No. 20200930

Supreme Court of Utah.

Heard October 18, 2021

Filed June 23, 2022

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.

On Certiorari to the Utah Court of Appeals

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 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 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, 478 P.3d 1046.

¶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 neither clearly erred nor acted arbitrarily or capriciously in dismissing CenturyLink's appeal. ICS Corr. Inc. , 2020 UT App 159, ¶ 9, 478 P.3d 1046.

¶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...