Testing Company DRC Protests Award of Contract in South Carolina

Managing Editor

South Carolina officials have announced their intention to award a testing contract worth an estimated $58 million to the ACT—but the deal isn’t happening without a fight.

The decision to grant a five-year deal to the Iowa City, Iowa-based organization is being protested by another testing organization, the Data Recognition Corporation, which alleges that the ACT failed to meet the requirements of the state’s request for proposals, that the state scored the organization’s proposal improperly, and that one of evaluators of the bids had ties to ACT, and thus a conflict of interest.

“The means and methods in which the evaluation process was conducted and [an] award determination made were in violation of the procurement code,” wrote E. Wade Mullins III, a lawyer representing DRC, in a Sept. 29 letter to the state. “The integrity of the entire process was, there, tainted and unfairly prejudiced DRC.”

Protests of state testing contracts are not uncommon, which probably isn’t surprising given the big money at stake in those deals. Regular Marketplace K-12 readers know that we’ve been following a protest and subsequent lawsuit in New Mexico over a potentially much bigger contract associated with common-core tests. That dispute pits the American Institutes for Research, which filed the suit, against Pearson, which won the award.

South Carolina recently moved to abandon the common-core standards, and new standards are scheduled to be put in place for the 2015-2016 school year. But it still needs statewide tests. For the contract in question, it had sought a vendor to provide adminstration, scoring, and reporting of tests for grades 3-11 over a five-year period. After reviewing the proposals, state officials issued a notice of intent to award the contract to the ACT on Sept. 19.

In a letter written to Michael Spicer, the chief procurement officer for the state’s information technology management office, the DRC, based in Maple Grove, Minn., challenges its rival’s award on several points.

The DRC says the ACT failed to comply with the exact requirements of the state’s RFP and was “non-responsive” on other issues, such as how the organization would modify tests to meet new state standards. Those collective omissions, the DRC says, should have resulted in the ACT’s bid getting rejected. Instead, the protest claims, the state evaluation panel’s “arbitrary and capricious” scoring handed the award to the ACT.

The protest also claims that South Carolina officials and the ACT communicated back-and-forth to clarify certain aspects of the ACT’s proposal, exchanges that occurred past stated procurement deadlines, in ways that were “improper and in violation” of state law.

Additionally, the DRC says an unnamed-member of the evaluation panel had a conflict of interest. That individual had a “direct relationship” with the ACT by serving as a member of the “South Carolina ACT Council,” the protest alleges. Not excluding that individual from the review serves to “thwart public concidences” in the process, says the DRC.

Scott Hawkins, a spokesman for the South Carolina Budget and Control Board, which oversees the procurment process, said the state would not comment on the allegations while the protest is being reviewed. Representatives from the ACT and DRC also declined comment.

The DRC’s protest has the effect of stopping the award process from going forward until the state rules on the matter, said Delbert Singleton, the director of the state’s division of procurement services, in an interview.

The next step, he said, is for the chief procurement officer on the award—in this case, Spicer—to take up the case, either by holding a hearing on the matter, making a decision on his own, or taking testimony from the various parties. No firm date has been set for when such a review would occur.

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