RALEIGH, N.C. (WBTV) – North Carolina Superintendent of Public Instruction Mark Johnson has asked a state Superior Court judge to decide the fate of a contract awarded by his department for software that evaluates the literacy of students in kindergarten through third grade.
Johnson filed a petition in Wake County Superior Court on Monday asking a judge to dissolve a stay issued by a hearing officer at the North Carolina Department of Information Technology that put on hold a contract for software to evaluate literacy in elementary school students.
The new filing was the latest development in a long saga over who gets a contract to continue literacy testing as part of the Read to Achieve program.
Earlier this year, Johnson awarded the contract to a company called Istation over three other companies, including Amplify, which had held the contract.
Amplify is now protesting that decision.
In an interview Monday, Johnson said he decided to re-bid the contract because he wanted to re-work the Read to Achieve program.
“We weren’t getting the results that we need for our students and, so, you don’t want to try the same strategy and expect different results,” Johnson said. “It was time for a change and, after a fair process, that’s exactly what North Carolina got.”
Johnson’s emphasis on a “fair” process comes after he cancelled two different requests for proposals, each time citing irregularities that would have given the appearance of a conflict of interest between a member of the committee evaluating the bids and Amplify.
Ultimately, Johnson cancelled the RFP process and ordered his agency to negotiate contracts with both Istation and Amplify. Istation’s proposal was chosen in a decision announced this summer.
Depositions, other discovery reveal Amplify’s appeal strategy
Amplify’s appeal of the decision to award the contract to Istation is currently pending before a hearing officer at DIT.
As part of the proceeding, lawyers for the two companies and DPI have taken depositions and obtained other evidence as part of the discovery process.
Depositions and other evidence obtained by lawyers for DPI and Istation and obtained by WBTV paint a picture of the effort by Amplify to challenge the contract.
According to the depositions, the company engaged at least three former DPI employees, who of whom had participated in the previous RFP processes for the Read to Achieve bid.
Krista Curran, a senior vice president and general manager at Amplify, testified that the company consulted with Amy Jablonski and Abbey Whitford—both of whom sat on previous evaluation committees for the Read to Achieve RFP as DPI employees—and Carolyn Guthrie, a former DPI employee who managed a team of people that worked with school districts across the state to administer the Read to Achieve program.
The second RFP was cancelled after DPI learned Whitford leaked confidential details of the evaluation process to Guthrie, in violation of a non-disclosure agreement. Jablonski was part of the first RFP evaluation that was cancelled.
In her deposition, Curran testified that Amplify reached out to Jablonski after company officials saw her pro-Amplify post on Facebook opposing the decision to award the new contract to Istation.
Curran testified that Jablonski assisted Amplify in drafting its protest letter and planting pro-Amplify stories in education-related media outlets and blogs across the state. Curran said Jablonski was not paid for her assistance.
Text messages between Curran and Jablonski show the two communicated frequently about stories Jablonski was discussing with reporters and bloggers. One text shows Jablonski consulted with the company’s attorneys, too.
And Jablonski—who, at the time, had announced her intention to run for Superintendent of Public Instruction—sought campaign advice from Curran. Jablonski is no longer running for the position.
The depositions also show Amplify coordinated having Whitford—the DPI employee whose leak of confidential information led to the second RFP being cancelled—speak with a reporter and that Whitford assisted Amplify in drafting its protest.
At the time Whitford and Jablonski worked with Amplify, they were no longer employed at DPI and were not subject to any non-disclosure agreements.
Requests for comment sent to Amplify’s media team and an attorney for Whitford, respectively, went unanswered.
Johnson challenges protest process, asks for judge to weigh in
In his interview with WBTV, Johnson cited the work between former employees at his department and Amplify as an example of why he didn’t trust the procurement process to produce a reliable result.
“Now that we’ve gone back and looked at all the evidence, there were very unfair, biased procedures that were benefitting Amplify over all the other vendors,” Johnson said. “It is quite upsetting when I read through the depositions to see almost how much of a gang these bureaucrats were and so focused on their preferred assessment tool.”
On Monday, Johnson sent a letter to DIT Secretary Eric Boyette criticizing alleged procedural defects in the appeal process to date.
“My intent is not to discuss the merits of this contested case but rather to make you aware of the numerous serious errors that have plagued NCDIT’s adjudication of this matter of the past four months,” Johnson wrote at the close of the letter.
Among the issues Johnson cited in the appeal process to date was the length of time DIT had taken to issue a decision on whether or not to stay the contract; the mediation process, in which Johnson said the DIT hearing officer proposed a compromise that would have been at odds with state law; and the hearing officer’s failure to follow the North Carolina Rules of Civil Procedure in considering and ruling in the case.
The same day Johnson sent that letter, he also asked a state court judge to dissolve the stay of the contract put in place by the DIT hearing officer.
Since the contract with Istation has been put on hold, Johnson said, the company has allowed its software to be used in schools across the state free of charge.
“This, right now, is a contract dispute amongst bureaucrats in Raleigh,” Johnson said. “The work in the classroom is going on; the tool is being used.”
UPDATE: On Monday, Dec. 23, a judge put a stay on an order an administrative judge issued halting the contract. A state court judge will hear arguments on whether the contract should be stayed permanently.