Ruling questions Istation selection process, but you may still find the tool in NC classrooms for now
Posted December 9, 2019 7:05 p.m. EST
Raleigh, N.C. — A Department of Information Technology (DIT) order Monday said the Department of Public Instruction (DPI) apparently took actions that favored Istation over the state’s former vendor, Amplify, when DPI awarded a new contract this year for its statewide K-3 reading assessment tool.
DIT General Counsel Jonathan Shaw’s order upheld a stay that has stalled the contract DPI awarded this past summer to use Istation’s services to test readers in early grades — but allowed Istation to continue supplying the state its services free of charge.
Amplify, the losing bidder and previous vendor, protested the state’s decision and procurement process in June. In August, Amplify was granted a stay of the contract until the process was reviewed. Last week, DPI and Istation asked DIT for a decision on the review by Monday. Shaw’s order was DIT’s response.
His order, based on information provided through documents and oral arguments from October, says DPI tweaked criteria the evaluation team was using to rank how well vendors met the state’s needs.
“There is sufficient information before the undersigned presented in the parties’ filings to indicate that NCDPI not only changed the evaluation criteria, but altered the ranking of the importance of remaining criteria in a way that benefited Istation,” the order reads.
The order goes on to say there is sufficient information that DPI removed evaluation team members from the process who voted for Amplify and kept those who voted for Istation before entering into direct negotiations with the two companies.
“In sum, the evidence and arguments of record presented thus far are sufficient to indicate that NCDPI failed to comply with applicable statutory law and information technology procurement rules promulgated in 09 NCAC 06B and jeopardized the integrity and fairness of the procurement process,” the order reads.
As the school year started, Istation continued to introduce its tools in classrooms free of cost to the state. Shaw, in maintaining the stay Monday but declining Amplify’s motion to enforce it, allowed that arrangement to continue, meaning that elementary school teachers can continue being trained on Istation’s tool for now.
In their request for a decision last week, DPI and Istation claimed the delay in the review was causing “worsening statewide confusion” and “threatens to implicate the fundamental, constitutional rights of public school students to a sound education.” The two parties stated they would go to Superior Court “to seek relief” if Shaw did not make a decision by Monday.
DPI was required by law to choose a vendor for early literacy measurement as part of its Read to Achieve effort to raise reading proficiency.
Shaw’s findings are not binding and can change based on information presented at a hearing on the merits of the case — whether the contract was fairly awarded to Istation — which is scheduled for the week of January 13.
Amplify CEO Larry Berger said in a statement that Shaw’s decision to maintain the stay affirms the company’s issues with the procurement process.
“So far, due process has continued to validate Amplify’s concerns. We look forward to a speedy resolution,” Berger said.
Istation, on the other hand, is pleased that Amplify’s motion to enforce the stay was denied, said President and COO Ossa Fisher in a statement.
“We appreciate the clarity that is brought to the state by denying Amplify’s motion and allowing Istation to continue the important work of assessing early readers. Since the beginning of the school year, Istation has assessed more than 360,000 students – in every district of North Carolina. And in the first nine days of December, Istation has assessed more than 180,000 K-3 students statewide, including almost 12,000 students in the Wake County Public School System (WCPSS) alone.
We maintain that Istation was legally and appropriately awarded the assessment contract by the Department of Public Instruction in June and are confident that our contract will be upheld as the legal process progresses.
As state agencies debate the ongoing appeal, we will continue to do what we’ve done since we were awarded this contract in June: working daily to serve the teachers, students and families of North Carolina to help them develop the critical grade level reading skills needed for their future.”
North Carolina Superintendent Mark Johnson released a lengthy statement Monday, criticizing Shaw's work.
"Jonathan Shaw of NC DIT can point to nothing to back up clear factual errors he made today in his ruling.
Shaw and DIT have not in any way, shape, or form followed the legal standard of review for ordering a stay. The stay they put in place in August was inappropriate based on the simple fact alone that they never even gave DPI or other parties the chance to respond.
Now, months after DPI asked for relief for NC’s schools, DIT is taking it to the next level by saying things that are simply not true. The mistakes of fact in Shaw’s ruling today are too numerous to cover them all, but I’ll note two.
Shaw says DPI did not inform the vendors of the evaluation criteria. The fact is that both vendors were provided the evaluation criteria in a letter that DPI drafted with guidance from DIT staff. The vendors’ proposals based on those criteria went through a fair evaluation process guided by DIT staff.
Shaw says that DPI only placed members on the negotiation evaluation committee who had previously voted for Istation, but half of the members of that final committee had never even voted in the previous two RFPs. Also, the votes were conducted anonymously. The only tally Shaw has on the votes is the leaked confidential information from a former DPI employee who coordinated with Amplify on their protest.
DPI employees worked closely with DIT employees throughout both RFPs and the negotiations with vendors. DIT employees were the ones who suggested going the negotiations route and were present in negotiations meetings with vendors.
Shaw has already injured the work of DPI and DIT employees with the incompetence with which he has conducted this review process. Now, he is adding insult to injury with blatant mistakes that he is using to justify more bad decisions."