Education Week - May 14, 2014 - 10

INDUSTRY & INNOVATION > Tracking business trends and emerging models in K-12
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Pearson Testing Deal
For Common Core
Faces Legal Challenge
By Sean Cavanagh
A decision to give the education
vendor Pearson a major, potentially
lucrative contract for common-core
testing is being challenged by a competitor
that claims the award was
made through a process that was
unfair and biased in favor of the
eventual winner.
The American Institutes for Research,
a Washington-based organization
that has a substantial place in
the testing field, has filed a legal action
in New Mexico state court that
argues the contract was awarded in
a process that was illegal, and structured
in a way that wrongly benefited
one company-Pearson.
The air initially 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-those belonging
to the Partnership for Assessment
of Readiness for College
and Careers, or parcc, testing consortium-was
issued. The state rejected
that protest, saying it hadn't
been filed within the required time
window.
Now, the air is asking a judge to
overturn the state's decision on its
protest. It wants the court to declare
as invalid the process for issuing the
award, block the procurement from
going forward, and order that the initial
bid for testing work be restructured
to correct problems with the
solicitation.
The dispute over the contract represents
a high-profile battle over
work that is essential to ensuring
that ambitious testing linked to the
Common Core State Standards can
be carried out. Sixteen states, plus
the District of Columbia, are participating
in parcc, while 22 states
are members of the other major
common-core testing consortium,
the Smarter Balanced Assessment
Consortium.
The contract awarded to Pearson, a
commercial education provider with
a worldwide reach, calls for the London-
and New York City-based company
to provide the development of
test items, test delivery, reporting of
results, and analysis of student performance
for parcc.
A Mississippi state official, part of
the negotiating team on the contract,
could not put a dollar value on the
contract, but described its size as
"unprecedented" by the standards of
the U.S. testing industry.
The potentially huge scope of the
work is described in the language of
the New Mexico contract with Pearson.
It says that anywhere between
5.5 million and 10 million students
would be tested annually, with a projected
per-student cost of testing in
the new contract of about $24. That
estimate is a decrease of more than
$5 per student from the previous
price tag.
Favoritism Alleged
New Mexico, a parcc state, put forward
the initial request for proposals
for the parcc testing work on behalf
of the member states in the consortium
in November.
In December, the air filed a protest
with the state, citing several
objections to the rfp put forward
for the testing project. For instance,
the air argued 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 restricts
competition.
The bundling of work favors
Pearson, because it would rely on a
content-delivery platform already
developed by Pearson for the parcc
tests, the air said in a Dec. 11, 2013,
letter to New Mexico's education
department.
That arrangement meant that vendors
other than Pearson would end
up having to design an assessment
system and estimate the costs of that
work with only vague information,
the air claimed in its protest.
As a result, Pearson would be allowed
to "transform the advantage it
enjoys as the year-one [content-delivery]
platform vendor to an advantage
for subsequent years of the program,"
the air stated in its protest.
In court documents, air officials
say they would have submitted an
official proposal to do the testing
work if they thought the bidding
process was fair, but they regarded
it as flawed and biased, and so they
decided not to bid.
In the end, Pearson ended up being
the only bidder, a parcc state official
told Education Week.
The protest from the air was initially
sent to an official at the state's
department of education. But a little
more than a week later, air officials
said they were informed that their
protest had not been put forward in
a timely fashion, and was thus invalid,
because it had not been sent to
the state purchasing division. State
officials said the correct process was
made clear in the rfp.
In response, the air filed its appeal
in state court, calling the rejection
of its protest "arbitrary, capricious,
and not in accordance with governing
law."
Air officials declined to comment
in detail on the lawsuit. Jon Cohen,
the president of assessment for the
organization, said in a statement
that the state's rfp, as it was drafted,
was tied to work Pearson was doing
in the first year of assessment, and
would end up giving the company a
"monopoly on completely different
work for the next seven years."
A spokeswoman for Pearson, Stacy
Skelly, said the company had no
comment on the air's protest over
the procurement process. Pearson
was unaware of the subsequent legal
challenge, she said.
Huge Scale
Parcc officials also had no response
to the protest or legal action,
said David Connerty-Marin, a
spokesman for the organization. He
directed questions to New Mexico officials,
noting that the contract had
originated in that state and was issued
on behalf of a group of parcc
states.
Larry Behrens, a spokesman for
the New Mexico education department,
said his agency could not
speak to the dispute directly, citing
the pending lawsuit. But in an email
to Education Week, he said that because
the court has not halted the
procurement, the work on the testing
project will go forward.
In their complaint to the state, air
officials also argue that the partnership
between parcc and Pearson creates
a potential conflict of interest.
10 | EDUCATION WEEK | May 14, 2014 | www.edweek.org
Specifically, air officials said that if
the consortium competes for testing
work being procured in other states,
parcc would have an incentive in
New Mexico to award work to a contractor
it intends to partner with-
Pearson-because doing so would
improve its ability to compete for
similar work in other state markets.
Earlier this month, officials in
parcc states touted the deal as providing
a number of benefits. One
of the biggest is its price-the assessment
cost will be $24 per student,
state officials estimate. That's
cheaper than an initial projection of
$29.50.
James Mason, who helped negotiate
the contract as part of a team
of parcc state leaders, said in an
interview that he could not provide
a dollar figure for the contract, because
the price tag would depend on
how many students and states end
"
[The contract is one of]
unprecedented scale,
in terms of states
coming together.
It's a pretty significant
event in a number
of ways."
JAMES MASON
PARCC Negotiator
up participating, and whether they
choose computerized or paper-andpencil
tests, among other factors.
But he described the contract with
Pearson as one of "unprecedented
scale, in terms of states coming together.
It's a pretty significant event
in a number of ways."
Despite Pearson being the only bidder
for the contract, parcc officials
are convinced the process was sound
and resulted in the best vendor getting
hired, Mr. Mason said. The list
of experienced subcontractors secured
by Pearson, which include the
Educational Testing Service, WestEd,
Caveon, and Measured Progress, also
gave parcc state officials confidence,
added Mr. Mason, who is Mississippi's
state assessment director.
The $24-per-student price was
reached after "very aggressive negotiating"
between parcc state officials
and Pearson, a back-and-forth that
lasted weeks, he said. He attributed
the lower cost partly to economies of
scale that can be achieved through
having large numbers of states and
students participating at once.
Gauging the total cost of the contract
is not as simple as it is for a
state charged with negotiating with
a vendor, in which the state and vendor
agree "we'll do it for X million,"
said Mr. Mason. By contrast, he
said, figuring out the costs for multiple
states in parcc will depend on
what they choose from an "a la carte"
menu of testing options.
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Education Week - May 14, 2014

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