A second attempt by the Department of Education to acquire testing items as part of a Race to the Top grant award has sparked a new legal battle among the agency and three of the companies involved in the bidding.
At stake: A contract potentially worth tens of millions of dollars that is already the subject of one bid challenge, prompting the department's second attempt.
Leading the charge is CTB/McGraw-Hill, the company that filed the challenge to the first procurement -- meant to produce testing items and a platform for testing across an array of subjects, from kindergarten math to high-school history.
The company has again filed a protest with the Department of Administrative Hearings, which has scheduled a hearing for May 24 in Tallahassee.
Like the first time around, McGraw-Hill is saying that its proposal was misunderstood. This time, the company says state officials considering the bids misread a portion dealing with whether McGraw-Hill intended to use copyright materials for some language-arts questions, a move that could have cost the state money in future years.
But McGraw-Hill said that portion of the contract was only meant to apply if the state decided to use copyright materials, and that the company always intended to only use materials in the public domain if left to its own devices.
That misinformation led at least one person looking at the proposals, Ryan Hess, to reduce his original score for the McGraw-Hill bid. Another company, NCS Pearson Inc., eventually got the contract.
"If Evaluator Hess had not been led to erroneously change his score by the comments of a fellow evaluator, CTB would have had the highest overall score," the company's protest says. "If Evaluator Hess had reduced his score by 1 point, Pearson and CTB would have been tied. CTB's proposal when fairly evaluated was the most advantageous for the state."
McGraw-Hill also argues that the Pearson proposal didn't respond to all of the requirements of the state's request for proposals.
But in its own filing with the Department of Administrative Hearings, Pearson says its price for providing the services was the cheapest and the Department of Education made the right call.
"The proposed agency action of the department, as reflected in its intended award, is consistent with the department's governing statutes, rules and policies, as well as with the specifications of the RFP," one filing from Pearson said. "In addition, the department's proposed agency action, as reflected in the intended award, complies with the requirements of Florida law and is not clearly erroneously contrary to competition, arbitrary or capricious."
The protest does not state how much the contract is worth, but bids mentioned in the original protest were more than $30 million.
In a twist on the first protest, Houghton Mifflin Harcourt Publishing Co. is trying to join McGraw-Hill's protest. HMH won the first bid before the McGraw-Hill protest prompted the Department of Education to reject all the bids and start over.
"All vendors who participate in a flawed procurement are entitled to a rebidding under a fair process, which may result in an award to any of the bidders," HMH said in a filing seeking to intervene in the request.
But the Department of Education rejected that view, saying that HMH wouldn't gain anything or be hurt by the protest because there's no evidence that it would have been selected based on McGraw-Hill's challenge.
"As the 'second loser,' HMH lacks standing to challenge the contract award," the department said in a filing.