The American Institutes for Research put forward a broad defense of its protest of a potentially huge common-core testing award to Pearson, reiterating that the contract violates the law and will inevitably cost taxpayers money because it shut other vendors out of the process.

The Washington-based AIR makes its case in a new filing with the state of New Mexico, which has overseen the controversial bidding process on behalf of a consortium of states, the Partnership for Assessment of Readiness for College and Careers, designing tests aligned to the common core.

The stakes are high: In an interview with Education Week, one PARCC state official described the scope of work in the contract as “unprecedented in scale.”

The AIR argues that the contract was awarded through a bidding process that was skewed to favor Pearson, and that Pearson and PARCC “behave as business partners who have each marketed the PARCC program using Pearson’s technology.”

The filing, submitted to New Mexico’s state purchasing agent, cites written information submitted by PARCC to other states that have sought common-core testing work, Arizona and Florida. The AIR argues that PARCC’s plans for doing work in those states shows the consortium and the company “promoting each other’s products and platforms.”

The AIR’s filing is the latest turn in a case that began in December when the organization protested a request for proposals put forward by the state of New Mexico for common-core online testing, arguing that the terms of the bid favored Pearson.

A core piece of the AIR’s argument has been that the RFP wrongly coupled assessment services to be provided in the first year of tests with work to be conducted in years two through eight of the exams. That amounts to a “bundling” of work that favors Pearson, the AIR claims, because the later work would need to rely on a content/delivery platform already developed by Pearson for the PARCC tests.

The AIR’s protest was initially rejected by New Mexico’s state purchasing agent, who ruled that it wasn’t filed in time. But a state judge last month overturned that decision and ordered that the contract be halted from going forward until the state purchasing office ruled on the merits of the AIR’s protest.

Pearson and the New Mexico’s department of education submitted their arguments to State Purchasing Agent Lawrence O. Maxwell earlier this month, and AIR did so this week, responding to a June 25 deadline. A spokesman for Maxwell’s office told Education Week that there was no firm timeline for Maxwell making a decision in the case.

In their arguments, Pearson and New Mexico officials have said that the AIR’s protest threatens to undermine PARCC’s plans to implement the exams during the 2014-15 school year.

But in their filing, officials from the AIR say the blame for any delays lies with the flawed RFP, and the state’s failure to consider their protest in a timely way. Additionally, AIR officials say that they have recognized PARCC’s tight deadlines all along, and for that reason they did not seek to stop the contract from going to Pearson in year one—they only wanted to make sure the rest of the contract, for the remaining period, was awarded fairly.

What’s unclear, at this point, is whether Maxwell is likely to accept, or reject, all of the AIR’s protest—or if he has the authority to reject a portion of the contract award, while leaving other parts of it intact. (The state purchasing office did not provide an immediate response to Education Week on that question.)

Among the arguments made by the AIR in its written filing:

• The RFP was a “cooperative” procurement, written on behalf of a group of PARCC states, but that New Mexico officials failed to put in place the necessary cooperative purchasing agreements, violating state law. Pearson and the state dispute the AIR’s claims;
• The RFP unfairly combined test development and test administration work, favoring Pearson. While the value of the test-development work is probably worth several millions of dollars, the value of the administration costs will be worth much, much more—more than $200 million a year, or $900 million for four years of contact, AIR says.
• The structure of the RFP will not produce the kinds of cost-savings that Pearson and the state claim it will. Any cost savings from the alleged “bundling” of work is outweighed by the higher costs of eliminating competition, the AIR argues.

“New Mexico’s interests are in no way served by awarding a contract to a pre-determined vendor based on an anti-competitive process,” the AIR writes in one section of its filing.

“Indeed, such conduct undermines the integrity of the procurement process. Such unwarranted favoritism hurts not just the procurement process itself, but also the students, teachers, and schools that should be the beneficiaries of this solicitation.”