A judge in New Mexico has ordered state officials to review a protest filed by a research and testing organization alleging an unfair and biased bidding process before going forward with a potentially lucrative, multistate contract for online common-core testing work.
The major contract award was made to Pearson to provide a broad scope of services, including test delivery and item development, to states belonging to PARCC, one of the two main consortia designing assessments linked to the Common Core State Standards.
But the ruling issued Tuesday by Judge Sarah M. Singleton of the Santa Fe First Judicial District raises questions about how that work will be carried out, unless the protest and related legal action are resolved in favor of New Mexico officials, who oversaw the bidding process on behalf of PARCC states.
The judge decided that the protest of the bidding process, filed by the American Institutes for Research, based in Washington, was submitted in an appropriate and timely fashion. She overruled the objections of New Mexico officials, who had argued that the protest was turned in too late.
New Mexico, a member of the Partnership for Assessment of Readiness for College and Careers, put forward an initial request for proposals for testing work in November on behalf of the member states.
The ruling sends the decision back through the state's official process for reviewing protests of contract awards, and it means that the awarding of the contract to Pearson cannot proceed until a decision is made on the AIR's objections, lawyers in the case told Education Week.
In her ruling, Singleton concluded that the request for proposals put forward by New Mexico officials was "ambiguous" about where protests over the bidding process should be submitted, according to a transcript of the hearing. That ambiguity would have been a source of confusion for the AIR.
Singleton went on to say that the AIR's efforts to submit a protest suggested "substantial compliance," by the standards of New Mexico law.
As such, the state agency was obligated to have "considered the protest on its merits," she said, rather than relying on "the easy canard of untimeliness."
A lawyer representing the AIR in the case, Carrie F. Apfel, said the organization was pleased with the judge's decision, but declined to comment on the ruling in detail. Both Apfel and state officials said the next step would be for a review of the AIR's protest to go before New Mexico's state purchasing division, which has overseen the bidding process for the common-core contract. (The executive vice president of the AIR, Gina Burkhardt, serves on the board of Editorial Projects in Education Inc., which publishes Education Week.)
In a statement to Education Week, Larry Behrens, a spokesman for the New Mexico education department, defended the state's process for issuing the award to Pearson, calling it "fair and open."
"Today's procedural ruling does not affect our core arguments," Behrens said. "The next step will involve a decision from the state purchasing agent who has already heard our position. We are confident in our arguments and believe we will prevail on the merits. We look forward to a resolution that puts New Mexico's students ahead of bureaucratic obstructionism."
'Bundling' of Work Alleged
At the hearing, the judge said it was unclear whether her decision could be appealed. Sean Olivas, a lawyer representing the state, told EdWeek that he could not speculate on future steps the state might consider.
The AIR, which like Pearson does extensive work in testing, filed a protest with New Mexico state officials six months ago, not long after the invitation for bids on behalf of a group of common-core states was issued by New Mexico officials.
The organization's protest listed several objections to the state's RFP. A central complaint was that the solicitation improperly tied assessment services to be provided in the first year of the tests with work in subsequent years, essentially creating a "bundling of work" that unfairly restricted competition.
That bundling of work ultimately favored Pearson because it would rely on a content-delivery platform already developed by Pearson for the PARCC tests, the AIR stated in a Dec. 11, 2013, letter to New Mexico's education department.
But state officials rejected the protest, saying it hadn't been filed within the required time window.
AIR officials say they submitted their protest to a New Mexico Department of Education official who the organization said was identified as the only point of contact for questions about the testing proposal. About a week later, AIR officials said, they were told their protest had not met the necessary deadline, because it had not been sent to the state purchasing division—a step that state officials said was spelled out as being required in the RFP.
The AIR then went to court, asking the judge to overturn the state's decision on its protest.
In court documents, the AIR says it wants the court to declare invalid the process for issuing the award, stop the procurement from going forward, and order that the initial bid for testing work be restructured to correct problems with the solicitation. (Judge Singleton ruled only on the issue of the timeliness of the protest, Apfel said.)
In the end, Pearson was the only bidder on the contract, a PARCC state official told EdWeek. The consortium announced earlier this month that Pearson had been awarded the testing work.
In court documents, AIR officials say they would have made an official bid for the testing work if they had thought the process was fair. But they ultimately did not believe they had a legitimate chance to win, they say, and so they decided not to turn in a proposal.
Officials in the PARCC states have said that the contract award to Pearson represents a good deal. They note that the assessment cost will be an estimated $24 per student—cheaper than a previous estimate of $29.50. Pearson is also working with a group of experienced subcontractors on the testing work, including Caveon, the Educational Testing Service, Measured Progress, and WestEd—a group that should give participating states confidence, PARCC state officials say.
A top Mississippi testing official, part of the negotiating team on the contract with Pearson, could not put a dollar value on the deal, but said it was potentially huge, describing it to EdWeek as "unprecedented" by the standards of the U.S. testing industry.