+ Nationa orce PO be 188 mace VIA EMAIL (BidProtest-DTMB@michigan.gov) January 12, 2015 Chief Procurement Officer Department of Technology, Management & Budget (DTMB) 4® Floor NE, Constitution Hall P.O. Box 30026 Lansing, MI 48909 Re: Protest of Award of Contract for Request for Proposal (RFP No. 0071141114B0001283) for Administration, Scoring and Reporting of College Entrance and Work Skills for the Michigan Department of Education Dear Sir: ACT hereby protests the award of the College Entrance component of the Administration, Scoring and Reporting of College Entrance and Work Skills to College Board (“Contract”), and requests a hearing. As the other qualifying bidder for the Contract, ACT has standing to pursue this protest. The factual bases for ACT’s protest are described below. On February 7, 2014, the DTMB issued the above-referenced RFP on behalf of the Michigan Department of Education (’MDE”), Division of Accountability Services (‘DAS’).' The solicitation sought proposals for “products and processes for the Administration, scoring, and reporting of the college entrance and work skills tests to all students in Grade 11 and eligible students in Grade 12 during the 2014-15, 2015-16, and 2016-17 school years, These tests are collectively used to ‘measure student proficiency with the State's content standards and expectations.” (RFP at 18.) The RFP specifically instructs that proposed “off-the-shelf” college entrance tests for this project must be aligned with Michigan's content standards and expectations, for each subject included in the college entrance test,” including English Language Arts — Grades 9-12 — Common Core State Standards. (RFP at 23.) In response to the college entrance component of the RFP, ACT bid off-the-shelf The ACT with writing for the college entrance component. ACT and College Board timely submitted proposals for the college entrance component by the March 10, 2014 deadline. * On February 11, 2014, DTMB posted an amended RFP, which had minor changes to the text (e.g., removing a clause regarding "State Employee Purchases.” The amended RFP did not alter the term of the contractChief Procurement Officer January 12, 2016 Page 2 of 4 In June 2014, the State advised ACT that it may not review the proposals for another 2- 3 months, and subsequently secured a one-year extension on its existing contract with ACT for the ACT plus writing and WorkKeys. In an email to ACT on November 7, 2014, Mr. Samuel advised the evaluation process for College Entrance and Work Skills was still underway, and requested revised pricing sheets for Spring 2016, Spring 2017 and Spring 2018. Mr. Samuel concludes his email with the following: In your pricing response, please include all additional costs necessary to meet the requirements as stated in the RFP. The State respectfully requests your most competitive response by the close of business on 11/12/2014 (Email from B. Samuel to C, Dunn dated November 7, 2014, attached hereto as Exhibit 1.) ACT submitted revised pricing as requested Timely proposals were considered by the Joint Evaluation Committee (‘JEC"), which was comprised of representatives from MDE, DTMB, various schools officials and a testing and assessment consultant. JEC first evaluated ACT and College Board's technical proposals. Only bidders that receive at least 80 points (out of 100) in the technical evaluation have their pricing evaluated for consideration of award. ACT scored 80 points on the technical proposal and College Board scored 90 points. The JEC then reviewed pricing; the total cost of ACT's proposal was $32,610,621 and College Board’s proposal was $17,134,458. Based upon the technical and pricing proposals, the JEC recommended that College Board be award the Contract amounting to $17,134,458. ACT contends the proposed award to College Board is improper. First, the one-year extension on the term of the contract unfairly benefited College Board and unfairly prejudiced ACT. ACT and College Board submitted proposals in response to a solicitation for a college entrance assessment for use during all three school years of the Contract (2014-15, 2015-16 and 2016-17). However, after bidders submitted their responses to the RFP, the State suspended the RFP, only to later reactivate it and informally change the term of the Contract to school years ending 2016-18. In revising the term for the college entrance component, Mr. Samuel informally requested revised pricing for the adjusted term of 2016-18. (Exh.1.) ACT was not formally notified of this modification to the RFP, nor offered an opportunity to revise any other aspects of its proposal to the extent they may have been affected by the adjusted term. On information and belief, when College Board submitted its proposal, it was not able to provide an assessment without writing for Spring 2015. ACT has issued a Freedom of Information Act (“FOIA”) request, and believes responsive documents will confirm oneChief Procurement Officer January 12, 2015 Page 3 of 4 of the following: (1) College Board improperly bid SAT without writing for the school year ending 2015 because the SAT without writing will not be available at that time; (2) College Board bid SAT with writing for Spring 2015, and was later permitted to revise its proposal to bid SAT without writing; or (3) the one-year extension, which occurred absent a formal revision to the RFP, automatically permitted College Board to bid SAT without writing for the first year of the Contract.” If the Contract contemplates an award for SAT without writing, as ACT expects the documents will refiect, the notice of award to College Board should be cancelled because it is the result of College Board's and/or the State's misconduct and the unfair treatment of ACT. Second, ACT was improperly assessed a deficiency for bidding The ACT with writing. During ACT's debrief with various members of the JEC on January 8, 2015, ACT learned that it was assessed a deficiency because it offered an augmented version of a college entrance exam. However, the RFP does not explicitly state that the State was looking only for a base exam. The RFP does explicitly state that the State intended to select a college entrance test that aligned with Michigan's content standards and expectations. A college entrance assessment with a writing component aligns with Michigan's English Language Arts content standards, which include specific standards for Writing for Grades 6-12. ACT has been delivering this aligned assessment - The ACT with writing - to Michigan students since Spring 2007. Since 2007, there has been no change to legislation or standards to suggest that a college entrance assessment without a writing component would align with Michigan standards. If Michigan intended to select a college entrance test that aligned with Michigan's content standards, ACT should not have been assessed a deficiency for bidding The ACT with writing, The price differential between ACT and College Board's pricing proposals is largely attributable to ACT bidding an assessment with a writing component, and College Board presumably bidding an assessment without a writing component. This disparity alone would have accounted for a significant price differential over the three year term of the Contract. The State was familiar with ACT's ability to offer The ACT without writing, yet never requested pricing for this product during a BAFO process, or otherwise, so that it could evaluate comparable products. For the foregoing reasons, the notice of award to College Board for the college entrance component of the Contract should be rescinded. ACT will rely on these arguments and such additional information as may become available through the course of our FOIA request and further investigation. ACT Due to the expeditious protest deadline, ACT was not able to obtain responsive documents to its FOIA request prior to fling this Protest. ACT reserves the right to rely on additional information contained through the course of its FOIA request and further investigation,