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Comptroller Peter V.R. Franchot called on Gov. Larry Hogan and the General Assembly to refrain from major changes to state taxes or regulations for at least the next three years. (File photo)

$60M Common Core contract approved after questions

ANNAPOLIS — A nearly $60 million contract to provide school assessments for the national Common Core standards was approved Wednesday, after it drew criticism over a lack of competition and questions about litigation in New Mexico.

The Board of Public Works approved the four-year deal with Iowa City, Iowa-based NCS Pearson Inc. by a split vote after a contentious round of questioning between Comptroller Peter V.R. Franchot and state Schools Superintendent Lillian M. Lowery and comments from attorneys representing a potential bidder who has taken the contract to court in New Mexico.

“We wanted a single vendor, and this was a competitive solicitation process,” Lowery said of the contract, which was brought to the three-member board that includes Franchot, Gov. Martin J. O’Malley and state Treasurer Nancy K. Kopp. Pearson began work in Maryland on July 1 despite the lack of approval.

Lowery said the Maryland contract was delayed because of ongoing appeals and litigation related to how the request for bidders was issued and decided in New Mexico.

Franchot at one point wagged his finger at Lowery and said the Maryland contract, which will be paid for with state funds, “is the opposite of competitive that you are presenting to us.”

“How do we know that’s the best price?” Franchot asked, noting that the New Mexico bid was the subject of ongoing litigation.

Maryland is a member of the Partnership for Assessment of Readiness for College and Careers, a consortium of 12 states and the District of Columbia that is working together to develop a set of standards for English and math as part of the national education standards known as Common Core. As part of that work, the group decided in 2013 to look for a single company that could provide assessment testing services.

New Mexico, which is a member of the group, was tasked with the responsibility of issue the request for proposal that other member states could ultimately piggyback on, as Maryland chose to do.

Maryland and some other states in the consortium were already using Pearson prior to the bidding process.

That contract ultimately received only one bidder in New Mexico — Pearson. A second potential bidder, American Institutes for Research, appealed the contract and is not suing claiming the request for proposal was written to benefit only Pearson.

“Not responding to an open bid is also responding to an open bid,” O’Malley said before addressing Franchot directly.

“Mr. Comptroller, there many instances where people don’t respond to the bids and then come in the back door and say, ‘Golly, we would have responded if only we had terms more favorable to us or if you weren’t asking so much of us,’” O’Malley said.

O’Malley and Kopp voted to approve the contract. Franchot voted against it.

Thomas L. McGovern III, an attorney with the firm Hogan Lovells representing the American Institutes for Research, said the New Mexico request for bids required bidders to make their testing software compatible with Pearson’s software.

“The real issue is why is the state issuing a four-year, $60 million contract on a sole-source basis,” McGovern said, adding that the New Mexico procurement “specified the vendor had to use the Pearson proprietary software for the first year ,which gave a little bit of a benefit to Pearson.

“It shouldn’t come as a surprise that only one bidder responded to that solicitation,” McGovern said.

“There is a good chance that the contract on which Maryland is piggybacking could disappear,” McGovern said of the New Mexico litigation.

Lowery several times rejected the idea that the New Mexico procurement was plagued with problems.

“It was a competitive process, and ultimately (American Institutes for Research) chose not to participate,” Lowery said.

“We are the consumer and we wanted the assessment we wanted and (Pearson) responded,” Lowery said.