Pearson and New Mexico officials are fighting back against a protest filed over the awarding of a potentially enormous common-core testing contract, with the company predicting that delaying the deal would cause “irreversible and irrevocable harm” to states wanting to roll out the online assessments on time.

The company and state made their arguments in writing to New Mexico’s state purchasing division, which was ordered by a judge to review the merits of a protest filed by the American Institutes for Research, a rival of Pearson’s.

Pearson was awarded a contract by New Mexico state officials, announced in May, to provide a broad and costly array of testing services to states belonging to one of the two main consortia developing common-core tests, the Partnership for Assessment of Readiness for College and Careers.

Those services include developing test items, delivering the tests, reporting the results, and analyzing student performance.

New Mexico, which belongs to PARCC, oversaw the bidding process on behalf of other states in the consortium. The AIR protested the award, arguing that the request for proposals put forward by New Mexico was crafted in a way that favored Pearson.

In sharply worded letter to state purchasing director Lawrence O. Maxwell, New Mexico Public Education Department officials cast the AIR’s claims as illegitimate and harmful.

“[F]rivolous protests by businesses looking to gain market share should first be examined for the affect they will have on the state’s students and educators,” wrote Dan Hill, the department’s general counsel, in a June 9 letter.

“We believe bureaucratic obstacles like the one put forth by AIR only work to stymie student progress in New Mexico. AIR’s protest is devoid of substance and is centered on its interest, not those of our students.”

In their comments on the protest, Pearson officials note that the RFP was set up to allow New Mexico and other states to have an agreement on costs of the tests in place in time for them to implement the exams during the 2014-2015 school year.

Putting out another, restructured RFP, as the AIR demands, would make it difficult to meet those deadlines, Pearson contends.

A Debate Over ‘Bundling’

No companies other than Pearson ended up submitting bids for the PARCC contract, described as “unprecedented in scale” by one state testing official. Officials from the AIR have said they would have submitted a bid, if they believed the RFP language had given them a legitimate chance to win.

The AIR initially submitted its protest of the contract in December, only to have it rejected by New Mexico’s purchasing office, which said the appeal had not been filed soon enough to comply with state law. Last month, however, state court judge Sarah M. Singleton disagreed, ruling that the AIR’s protest had been submitted in time, and ordered state officials to review the merits of the appeal.

Maxwell, who is charged with reviewing the protest, gave Pearson and New Mexico state officials until June 18 to submit written arguments defending the contract. The AIR has until June 25 to file its response.

Jon Cohen, the president of the Washington-based AIR’s assessment division, would not comment to Education Week on the specifics of the written arguments from Pearson and New Mexico officials, saying his organization would turn in a detailed, official response next week.

But Cohen asserted if the Pearson contract went forward, it would amount to making a huge award through a process that was fundamentally unfair.

“This award, if it went through, would provide Pearson with a monopoly [for work on a contract] on something approaching half the country, for up to eight years,” Cohen said in a brief interview. His organization is convinced the RFP improperly favored Pearson, he said. “Only Pearson bid on it, so one assumes that [other companies that chose not to bid] made the same judgment.”

The changes to the common-core contract sought by the AIR, Pearson argues in its letter, would result in the award being broken down into numerous smaller projects, which might benefit the AIR, but would ultimately prove “less cost-effective, less administratively efficient, and will undeniably jeopardize the quality of the assessments.”

New Mexico’s education department also objects to the AIR’s argument that there was an improper “bundling” of technology services in the contract. The department cites examples of other states awarding contracts for education technology—including contracts won by the AIR—for work in which services were similarly bundled.

In addition, both Pearson and New Mexico officials argue that the AIR’s protest is invalid under state law, because the organization never submitted an official bid for the contract.  

 “Further delay of the RFP process,” Pearson contends, “would cause irreversible and irrevocable harm to the project deadlines required for the PARCC assessments.”