Superintendent Mark Johnson must justify ’emergency purchase’ or risk having contract with Istation cancelled

Superintendent Mark Johnson

State Superintendent Mark Johnson may have violated state policy when he failed to seek approval from the state’s Chief Information Officer (CIO) before signing an emergency contract with Istation to assess the reading levels of North Carolina’s K-3 students.

As a result, State CIO Eric Boyette may “suspend or cancel” the contract if DPI cannot adequately justify the “emergency purchase” or the “execution of the RFQ (Request for Quotes),” which took place outside of normal business hours.

Johnson made the $928,570 purchase for services late Tuesday. Istation had been implementing its reading assessment program for free, but that arrangement ended Dec. 31.

Johnson cited a state procurement policy that gives agencies the authority to make emergency purchases to prevent the cessation of an important program. Under the policy, such purchases can be made without CIO approval if they’re made after regular business hours.

Here’s the policy: 

09 NCAC 06B .1302 EMERGENCY SITUATIONS OR PRESSING NEED (a) An agency may make purchases of goods or services in the open market in cases of emergency or pressing need. (b) When emergency or pressing need action is necessary, and the estimated expenditure is over the purchasing agency’s delegation, prior verbal approval shall be obtained from the State CIO unless the purchase must be made outside of business hours, during holidays or when state offices are otherwise closed. Subsequently, if the expenditure is over the purchasing agency’s delegation, an explanation of the emergency or pressing need purchase shall be reported in writing to the State CIO.

DPI has been given until 10 a.m., Tuesday to answer five questions about the emergency purchase.

“In the absence of a sufficient amended justification fully responsive to this memorandum and the questions below, the Sate CIO may exercise his authority to under [state law] to cancel or suspend any information technology procurement that occurs without the state CIO’s approval,” Patti Bowers, DIT’s chief procurement officer wrote in a letter to the N.C. Department of Public of Instruction (DPI) and Tymica Dunn, DPI’s procurement manager.

Bower said the Dec. 31 expiration of a “no cost” contract between DPI and Istation did not rise to the level of an emergency.

“Mere expiration of the “no cost” Memorandum of Agreement executed August 27, 2019, does not constitute an emergency sufficient to trigger this purchase authority,” she wrote. “If every contract signed after business hours constituted an emergency, the term would be rendered meaningless.”

The emergency purchase came one day after a superior judge refused to lift a stay to allow DPI to continue to work with Istation. The judge’s ruling left North Carolina without a tool to assess reading levels of its K-3 students.

Even so, Bowers said procurement rules must be followed.

“The Office recognizes that maintaining reading comprehension testing for the state’s children is an urgent matter and that certain statutory obligations exist; however, even the continuation of a vital program does not abrogate the responsibilities of purchasing agencies and the Department of Information Technology,” Bowers wrote.

DPI spokesman Graham Wilson acknowledged receipt of the letter when contacted late Friday.

“DPI received DIT’s letter late this afternoon, apparently at the same time the capital press corps did,” Wilson said. “We are happy to respond to their questions and will do so in a more timely fashion than DIT has exhibited thus far in their review process.”

Here are DIT’s five questions:

  1. Why was prior verbal approval not obtained and why was it necessary to execute the RFQ after business hours? Please supply copies of emails, notes, and native documents together with associated metadata or similar records.
  2. Whatarethe specific emergency event(s) that constitute the “recent circumstances endanger[ing] the continuation of Read to Achieve (“RtA”)” as referenced in the “Emergency Purchase-RtA Reading Diagnostic Assessment” dated January 7, 2020?
  3. Clarify the costs associated with the RFQ and compare those costs to the costs proposed in the original contract in order to determine if there are any discrepancies.
  4. The RFQ presents two payments which appear to be installments and are not aligned with the costs presented. Describe the services and term for Phase I with a payment due date of 1/15/2020 and Phase II with a payment due date of 3/15/2020.
  5. Do the costs for either Phase I or Phase II include payment for services rendered under the “no cost” Memorandum of Agreement executed August 27, 2019, and expiring December 31, 2019? Provide documentation that the “no cost” services were received and accepted without further obligation by either party.

Under questioning Wednesday by members of the State Board of Education, Johnson said he’s prepared to sign another emergency contract with Istation if the legal issues swirling around the reading assessment tool isn’t resolved when the contract ends in March.

An administrative hearing on the merits of the controversial award of an $8.3 million, three-year contract to Istation is scheduled to begin Monday. It’s doubtful the case will be resolved immediately, so Johnson’s temporary contract with Istation would allow schools to continue assessing students’ reading levels using the Istation program. It was unclear late Friday what happens if Boyette suspends or cancels the emergency purchase.

Amplify, an Istation competitor whose mClass assessment tool had been used in North Carolina’s K-3 classrooms for several years, filed a protest over the summer contending the contract was unfairly awarded. In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool.

Jonathan Shaw, the chief counsel for DIT, upheld the stay in December, contending that the “evidence and arguments of record” are sufficient to indicate that DPI failed to comply with state law and information technology procurement rules and “jeopardized the integrity and fairness of the procurement process.”

Johnson has claimed that the procurement process was tainted. He contends, among other things, that some committee members breached confidentiality and were biased in ways that tilted the evaluation in favor of Amplify and its mClass reading assessment tool previously used by the state.

Many teachers have been critical of the switch from Amplify’s mClass to Istation. They have questioned the procurement process and contend Johnson ignored the recommendations of an evaluation committee that ranked mClass over Istation.

The reading diagnostic tool is a companion to the state’s signature education program, “Read to Achieve,” which was launched in 2013 to ensure every student reads at or above grade level by end of third grade.

The results haven’t been great even as North Carolina has spent $150 million on the initiative. More than half of the state’s children in K-3 are still not reading at grade level.

Istation has been training teachers to use the reading diagnostic tool for free. It said last month that more than 180,000 North Carolina students in grades K-3 have been assessed using its reading diagnostic tool.




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