ILES IN THE CLAIMS COMMISSION OF THE STATE OF TENNESSEE ION MIDDLE DIVISION 20H FEB 2b A MEASUREMENT INCORPORATED Claimant, v. No.: K20171215 STATE OF TENNESSEE DEPARTMENT OF EDUCATION Defendant. ANSWER TO COUNTERCLAIM The Claimant/Counter-Defendant, Measurement Incorporated by and through counsel, responds to the State of Tennessee?s [the ?State?] Counterclaim as follows: 1. In response to the allegations contained in Paragraph 1 of the Counterclaim, MI admits that the parties entered into a valid and enforceable contract and states that the terms and parameters of the contract speak for themselves, and no further response is required. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 2. In response to the allegations contained in Paragraph 2 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. For further response, MI states that it attached a copy of the ?2014 contract? to its Complaint. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 3. Upon information and belief, MI admits the allegations contained in Paragraph 3 of the Counterclaim insofar that it believes that the State refers to some or all of its summative educational assessment system as ?TNReady.? MI is without suf?cient knowledge and information to either admit or deny any remaining allegations contained in Paragraph 3 of the Counterclaim and, thus, demands strict proof thereof. 4. In response to the allegations contained in Paragraph 4 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. For further response, MI defers to the contract for the respective rights and obligations of the parties to the contract including the State?s obligation to cooperate and work with M1 in the ful?llment of the various terms of the contract. 5. In response to the allegations contained in Paragraph 5 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. For further response, MI defers to the contract for the respective rights and obligations of the parties to the contract including the State? 3 obligation to cooperate and work with M1 in the ful?llment of the various terms of the contract. 6. In response to the allegations contained in Paragraph 6 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. For further response, MI defers to the contract for the respective rights and obligations of the parties to the contract including the State?s obligation to cooperate and work with M1 in the ful?llment of the various terms of the contract. 7. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 7 of the Counterclaim and, thus, demands strict proof thereof. 8. MI is Without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 8 of the Counterclaim and, thus, demands strict proof thereof. 9. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 9 of the Counterclaim with respect to what school districts relied on and, thus, demands strict proof thereof. For further response, MI does not know what speci?c ?representations? from M1 the State is referring to and therefore MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 9 of the Counterclaim with respect to said representations. 10. In response to the allegations contained in Paragraph 10 of the Counterclaim, MI is without suf?cient knowledge and information to either admit or deny the State?s intentions or reasons for entering into its contract with MI and, thus, demands strict proof thereof. For further response, MI admits that the parties entered into a valid and enforceable contract and states that the terms and parameters of the contract speak for themselves, and no further response is required to the remaining allegations contained in Paragraph 10. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 11. In response to the allegations contained in Paragraph 11 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. For further response, MI states that it attached a copy of the ?2015 contract? to its Complaint. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 12. In response to the allegations contained in Paragraph 12 of the Counterclaim, MI states that the contract speaks for itself, and no response is required. To the extent a response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 13. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 13 of the Counterclaim and, thus, demands strict proof thereof. For further response, MI denies any implication that the online platform it developed in conjunction with working closely with the State was ?unreliable.? 14. MI denies the allegations contained in Paragraph 14 of the Counterclaim as stated therein. 15. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 15 of the Counterclaim and, thus, demands strict proof thereof. 16. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 16 of the Counterclaim and, thus, demands strict proof thereof. 17. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 17 of the Counterclaim and, thus, demands strict proof thereof. 18. MI denies the allegations contained in Paragraph 18 of the Counterclaim as stated therein. 19. In response to the allegations contained in Paragraph 19 of the Counterclaim, MI admits that it received reports that some school districts were experiencing delays during the login process and slow response times; however, students continued to log into the MIST platform and by 10:15 am. the response time returned to normal. 20. MI denies the allegations contained in Paragraph 20 of the Counterclaim. 21. MI denies the allegations contained in Paragraph 21 of the Counterclaim. 22. In response to the allegations contained in Paragraph 22 of the Counterclaim, MI admits that the State unreasonably, unilaterally, and unjusti?ably cancelled all state-wide online assessments and switched to a paper and pencil administration of the TNReady and TCAP assessments. MI denies the remaining allegations contained in Paragraph 22. 23. In response to the allegations contained in Paragraph 23 of the Counterclaim, upon information and belief, MI admits that the State extended the Spring 2016 testing window. MI denies the remaining allegations contained in Paragraph 23. 24. MI denies the allegations contained in Paragraph No. 24 of the Counterclaim as stated. In response to the allegations contained in Paragraph 24 of the Counterclaim, MI avers that any perceived so-called delay in providing test materials to Tennessee?s school districts was caused by the Tennessee Department of Education?s unrealistic, arbitrary, and changing demands, which MI made every effort to comply with in good faith. 25. In response to the allegations contained in Paragraph 25 of the Counterclaim, MI admits only that certain delivery dates for certain TNReady test materials had to be revised due to the unrealistic, arbitrary, and changing demands in addition to factors that were outside control. 26. In response to the allegations contained in Paragraph 26 of the Counterclaim, MI admits that the initial expected delivery date for the test materials was April 15, 2016, but that the date had to be pushed back due to the unrealistic, arbitrary, and changing demands in addition to factors that were outside control. 27. In response to the allegations contained in Paragraph 27 of the Counterclaim, MI admits that the expected delivery date was pushed back to April 22, 2016, but that the date had to be pushed back further due to the unrealistic, arbitrary, and changing demands in addition to factors that were outside control. 28. In response to the allegations contained in Paragraph 28 of the Counterclaim, MI admits that the expected delivery date was pushed back to April 27, 2016, due to the unrealistic, arbitrary, and changing demands in addition to factors that were outside control. 29. MI denies the allegations contained in Paragraph 29 of the Counterclaim as stated therein. 30. In response to the allegations contained in Paragraph 30 of the Counterclaim, MI admits that a small percentage of Tennessee school districts had not received all of their testing materials by April 27, 2016, despite unending good faith efforts to meet every unrealistic, arbitrary, and changing demand issued by TDOE. 31. MI denies the allegations contained in Paragraph 31 of the Counterclaim. 32. MI denies the allegations contained in Paragraph 32 of the Counterclaim. 33. MI denies the allegations contained in Paragraph 33 of the Counterclaim. 34. MI is without suf?cient knowledge and information to either admit or deny the allegations contained in Paragraph 34 of the Counterclaim and, thus, demand strict proof thereof. 35. MI denies the allegations contained in Paragraph 35 of the Counterclaim. 36. In response to the allegations contained in Paragraph 36 of the Counterclaim, MI states that the letter speaks for itself, and no response is required. 37. In response to the allegations contained in Paragraph 37 of the Counterclaim, MI incorporates by reference its responses to Paragraph 1 through 36 of the Counterclaim as if fully set forth herein. 38. In response to the allegations contained in Paragraph 38 of the Counterclaim, MI admits that the State and M1 were parties to valid and enforceable contracts. For further response, MI states that the contracts speak for themselves, and no response is required. To the extent a further response is required, MI denies any allegations that do not accurately re?ect the terms of the contract. 39. MI denies the allegations contained in Paragraph 39 of the Counterclaim. 40. MI denies the allegations contained in Paragraph 40 of the Counterclaim. 41. MI denies the allegations contained in Paragraph 41 of the Counterclaim. 42. MI denies the allegations contained in Paragraph 42 of the Counterclaim. 43. MI denies the allegations contained in Paragraph 43 of the Counterclaim. 44. MI denies the allegations contained in Paragraph 44 of the Counterclaim. 45. The remaining allegations constitute a prayer for relief, and MI denies that the State is entitled to the relief requested or any other relief in general. 46. Any allegations not previously admitted, denied, or otherwise explained are hereby denied as if stated in speci?c reference to each allegation. AFFIRMATIVE DEFENSES 1. The Counterclaim fails to state a claim upon which relief can be granted. 2. The State? 3 claim(s) are barred by the doctrines of estoppel, waiver, laches, unclean hands, quantum meruit and/or unjust enrichment. 3. The State?s claims are barred by the terms of the contracts between the parties. 4. To the extent the State has been damaged, said damages were caused by the State?s own material breach of the contract between the parties. 5. The State?s claims are barred by its failure to mitigate damages, if any. 6. The State?s claims for damages, if any, are speculative. 7. To the extent MI is deemed to have breached any terms of the respective contracts between the parties, any and all such breaches are immaterial, and not material breaches, and MI substantially complied with the terms of the contracts. Further, the State materially breached its obligations pursuant to the contracts. 8. MI relies upon any other defenses available to it at law and/ or in equity and reserves the right, subject to the Claims Commission?s approval, to plead additional af?rmative defenses as they become known during or after the discovery process. WHEREFORE, Claimant/Counter-Defendant Measurement Incorporated respectfully requests that the Counterclaim be dismissed in its entirety with prejudice, that judgment be entered in favor against the State, and that MI be awarded its damages, attorneys? fees, costs, pre- judgment and post-j udgment interest, and any other relief that the Court deems just and appropriate as demanded in its Complaint. Respectfully submitted, LEWIS, THOMASON, KING, KRIEG WALDROP, P.C. F. Chapgkig-BPR 2043 awrence iogd 006104 Brad w. ?pn 031082 424 Church Street, Suite 2500 PO. Box 198615 Nashville, TN 37219 (615) 259-1366 Attorneys for Measurement Incorporated CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served on the following counsel of record in the manner of service indicated below: Eby placing postage prepaid envelope in United States Mail Service, addressed to: Herbert H. Slatery, Attorney General Matthew D. anssen, Assistant Attorney General Civil Litigation and State Services Division UBS Tower, 18th Floor PO. Box 20207 Nashville, TN 37202-0207 Robert N. Hibbett, Claims Commissioner Tennessee Claims Commission, Middle Division Andrew Jackson Building, 15th Floor 502 Deaderick Nashville, TN 37243 Commissioner Robert N. Hibbett Claim Commissioner, Middle Division Tennessee Claims Commission Clover Bottom Center, Fir Building 309 A. Stewarts Ferry Pike Nashville, TN 37214 by placing document in third party express delivery carrier, Federal Express, for overnight delivery to the following counsel of record: by sending document Via facsimile to: by sending document via email to: El by causing the foregoing to be hand delivered to counsel of record at the following address on this day of 2018: This the day of WW 2018.