The controversial awarding of a potentially huge common-core testing contract to Pearson appeared to overcome a major hurdle last week when New Mexico’s state purchasing agent cleared the disputed deal to go forward. But a crucial question remained: Would the rival testing organization that protested the bidding process as fundamentally unfair—the American Institutes for Research—appeal that decision in court? 

Now, the AIR has made its next move—by reaching out today to the group of states overseeing the disputed contract and offering to end its fight, if the later years of the award can be opened up for other companies to participate.

New Mexico’s state purchasing agent has ruled that the bidding process was fair, concluding that it was carried out in a “careful and thoughtful” way. That view is shared by Pearson, New Mexico’s education department, and the Partnership for Assessment of Readiness for College and Careers, a consortium of states intending to use the contract as it crafts common-core tests.

If the AIR’s new proposal is turned down, the organization could appeal the state purchasing agent’s decision through the New Mexico court system, potentially further delaying the administration of the PARCC contract.

The contract awarded to Pearson is for four years, with an option to renew for another four years. The AIR’s proposal to the PARCC asks the consortium to consider two main proposals:

• PARCC could allow Pearson to keep the testing contract for the first year, but would then agree to run a new competition—through what the AIR regards as a fairer process—during subsequent years; or
• The consortium could limit the current contract with Pearson to two years, and allow other vendors to use PARCC items and deliver consortium assessments immediately, if those companies agree to certain terms, such as paying licensing fees.

A PARCC spokesman, David Connerty-Marin, said the organization had received a letter from the AIR and would respond to it in time, adding that the consortium would not carry out an exchange with the test vendor through the media.

He noted that the AIR did not submit a formal proposal to win the contract during the bidding process—and that the organization’s arguments had been heard through an appeal process, and rejected.

“AIR is now trying to litigate again, this time in the press,” Connerty-Marin said. “The PARCC states are moving forward with the development and rollout of a high-quality assessment system that better measures what good teachers teach and how on-track students are.”

Since December, the AIR has argued that the request for proposals put forward for common-core testing work was skewed in favor of Pearson. One of the AIR’s core arguments is that the contract improperly bundled testing work that Pearson had already won through a separate award with PARCC with new testing work—thus improperly giving Pearson the upper hand.

Ultimately, Pearson was the only company to submit a bid for the work, and it was awarded the contract this spring. (Officials from the AIR say they would have submitted a bid, if they thought the process was fair.)

When the AIR filed its initial protest, New Mexico’s state purchasing agent rejected it, saying it had not been filed in time. A state judge disagreed, ordering the purchasing agent to review the protest on its merits. Last week, the state purchasing agent, Lawrence O. Maxwell, officially denied the AIR’s argument, saying state officials had made a convincing case that the RFP was carried out in a proper way.

Jon Cohen, the president of the AIR’s assessment division, told Education Week that his Washington-based organization is also willing to discuss other, alternate proposals with PARCC officials, as long as they ensure “real competition” for the contract.

Cohen said he thought the decision on whether to accept or reject the AIR’s offer would probably have to be made by PARCC in coordination with officials from the state of New Mexico, which oversaw the bidding process for common-core testing work, on behalf of the consortium states.

The AIR official did not say what his organization would do if PARCC spurned the offer. But he said formally appealing the state purchasing agent’s decision through the New Mexico court system was a real possibility.

“I think and I hope we’ll be able to work it out,” he said. “Hopefully there will be an open dialogue and a resolution.”

Cohen added that PARCC “has a good team, including Pearson” working on designing common-core tests. His organization just wants “a fair shot” at the testing work described in the contract, he said.

“We don’t want to derail PARCC,” he added.

[UPDATE: This post has been updated with a fuller response from PARCC, and additional details.]