SMITH, ANDERSON, BLOUNT,
DORSETT, MITCHELL & JERNIGAN, L.L.P.
LAWYERS
OFFICES
Wells Fargo Capitol Center
150 Fayetteville Street, Suite 2300
Raleigh, North Carolina 27601

July 24, 2019

J. MITCHELL ARMBRUSTER
DIRECT DIAL: (919) 821-6707
E-Mail: marmbruster@smithlaw.com

MAILING ADDRESS
P.O. Box 2611
Raleigh, North Carolina
27602-2611
TELEPHONE: (919) 821-1220
FACSIMILE: (919) 821-6800

VIA E-MAIL and U.S. MAIL
Tymica Dunn
Procurement Manager
North Carolina Department of Public Instruction
(301 N. Wilmington Street, Room B04)
6301 Mail Service Center
Raleigh, NC 27699-6301
tymica.dunn@dpi.nc.gov
Philip Thomas
North Carolina Department of Public Instruction
(301 N. Wilmington Street)
6301 Mail Service Center
Raleigh, NC 27699-6031
Philip.thomas@dpi.nc.gov
Re:

RFP No. 40-RQ20680730: Read to Achieve Diagnostics – Software As A Service
Follow-up from Protest Meeting

Dear Ms. Dunn and Mr. Thomas:
On behalf of Amplify Education, Inc. (“Amplify”), I wanted to thank the NC Department
of Public Instruction (“DPI”) for allowing us the opportunity to have a protest meeting on the
afternoon of July 18, 2019. We appreciated the attention of the many DPI staff who joined us in
the Superintendent’s conference room. Since Jonathan Sink led the meeting, but has departed DPI,
I am copying Mr. Thomas in his place as counsel for DPI.
As was noted in Amplify’s presentation, a number of the points and concerns raised in our
original protest letter were strongly validated when DPI released 166 pages of public records on
the afternoon of Friday July 12 (referenced herein as “PDF” with page references).

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 2

I.

Amplify’s proposal was clearly determined to be superior by DPI, and IStation was
deemed not to adequately satisfy critical statutory and RFP requirements.

Amplify’s CEO Larry Berger explained in the meeting that the company’s position that
mCLASS is indeed the best offering for the state of North Carolina was confirmed by the detailed
work done by the original Evaluation Committee. You do not need to merely take Amplify’s word
for it. The Evaluation Committee ranked Amplify #1 among all proposals on the three most
important evaluation criteria of the procurement. On one after another of the required
specifications that were tagged as “legislatively mandated” by DPI, Amplify received a unanimous
11-vote “yes” of the Committee for meeting the RFP’s requirements, when for many of the same
specifications IStation received zero “yes” votes. This included the RFP requirement of dyslexia
screening1, identified as one of the two purposes of the procurement by DPI at the outset of the
evaluation2. Zero committee members believed IStation met the state’s requirements for dyslexia
screening. This was further confirmed in the Evaluation Ranking materials where it is stated that
“Istation is not a reliable screener for dyslexia because it lacks some key measures for dyslexia
risk factors …. This will require multiple tools for assessment.”3 Indeed, even in the final (and
much less detailed) DPI memo of June 7, 2019 intended to justify the award to IStation, DPI
admitted that IStation’s product is “missing key measures” for testing dyslexia. (PDF p. 28 of
166.) This reflects the concern of the original Evaluation Committee that districts would have to
use two assessment tools to meet the statutory requirements for dyslexia testing if IStation had
been their choice.
DPI’s public records further show that DPI agreed (as we stated in our protest letter) that
Amplify’s offering met the State’s requirement that an offering be “developmentally appropriate”4
for the K-3 student population. According to the Evaluation Consensus Meeting Notes from
November 19, 2018, no Evaluation Committee members believed that IStation met the
“developmentally appropriate” requirement, and seven affirmed that IStation did not meet it. As
the Committee stated: “Some of the members were concerned about the all online piece of this
assessment and how appropriate it is for Kindergartners and struggling learners.”5
1

The RFP required a solution that could “adequately and accurately identify indicators of risk for
dyslexia in grades K-3 as outlined in NC Session Law 2017-127,” RFP, Spec. 8, at p. 26.
2

See page 3 of the October 5, 2018 Proposal Evaluation KickOff Meeting, PDF p. 79 of 166.

3

PDF p. 42 of 166.

4
5

RFP, Spec. 9 at p. 26.

PDF p. 59 of 166. “The team voted 7 No and 4 Maybe for this one as to IStation. Some voting
members were concerned about the all online piece of this assessment and how appropriate it is
for Kindergarteners and struggling learners. The assessment was also for 40 minutes.” According
to page 26 of the October 5, 2018 Proposal Evaluation Kick Off Meeting, approvals from all voting

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 3

Public records show that in determining whether the vendors demonstrated “Substantial
Conformity to Solicitation Specifications,” the Evaluation Committee ranked Amplify higher in
the majority of the requirements identified as “legislatively mandated” and deemed most critical
by DPI:
Excerpt of table presented by Amplify at protest meeting (full copy attached to this letter as
Exhibit A):

As we also detailed in the protest meeting, there were also at least two fatal procedural
flaws in the procurement process, both of which require the award to IStation to be voided.

members were required on meeting minutes from the consensus meetings, such as the one on
November 19. (PDF p. 102 of 166.)

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 4

I.

The “cancellation” of the RFP was done after the proposals and costs of each had
already been evaluated, yet DIT was told DPI could not evaluate the costs.

First, the “cancellation” of the RFP was clearly improper. In December 2018 and January
2019, DPI’s public records production (which was represented last week as being every record
known to the agency at this time on the procurement) reflects that the Evaluation Committee
ranked Amplify as the clear number one proposal among the four bidders, and that IStation’s
product was found to be deficient and failed to meet key RFP requirements. By January 2019, the
Evaluation Committee had reviewed all four proposals in depth and evaluated them on every one
of the RFP’s criteria, including cost.
After this full evaluation of all the bids, in a March 2019 meeting of the Evaluation
Committee, the minutes of that meeting (PDF p. 13 of 166) state:
One of the voting members breached the confidentiality provisions of the
procurement process which jeopardized the legality of this procurement. It should
also be noted that the team did not reach a unanimous consensus on the choice of
the finalists vendors. Because of these issues the current read to achieve
procurement has to be cancelled again.
This is DPI’s basis for the cancellation of the RFP. Yet, DPI’s public records do not
document any breach of any confidentiality that occurred on the 2018 RFP, and if any such breach
occurred, no records document how that affected the integrity of the procurement.6 In the protest
meeting, DPI made a reference to a breach of confidentiality but did not disclose any information
about it and simply referred Amplify to the public records production, which contains only the
information quoted above from the March 2019 meeting. Mr. Sink confirmed in the meeting that
he does not possess and is not aware of any public records that document any such confidentiality

6

Indeed, as Amplify noted at the protest meeting, DPI spokesperson Graham Wilson apparently
stated (mistakenly) just last week that an evaluation committee member had a past business
relationship Amplify that was undisclosed, and that this was the alleged basis for the cancellation
referenced in the public records. However, Wilson later corrected that statement, as it turned out
that was an issue raised in the 2017 RFP that was cancelled, not the 2018 RFP. The allegation
apparently concerned someone who was a contractor responsible for scheduling trainings and other
logistical details for a few months for Amplify in 2011/2012, and never had anything to do with
the substance of Amplify’s offerings. But DPI admits this matter had nothing to do with the 2018
RFP cancellation.
See www.newsobserver.com/news/business/article232712817.html where this information and
correction was published in the News & Observer.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 5

breach, other than the mysterious reference in the March 2019 meeting minutes. DPI apparently
has no records documenting any alleged confidentiality breach that required a cancellation.
On the “unanimous consensus” point of the March 2019 minutes, Mr. Sink agreed with
Amplify in the protest meeting that the normal meaning of the term “consensus” does not mean
“unanimous.” It sounds like DPI believes DIT told them that “consensus” requires unanimity, but
none of this is documented in any public records. As the original Evaluation Committee noted in
its November 19, 2018 meeting minutes, “consensus means general agreement and not unanimity.”
(PDF p. 46 of 166.) But even then, the Evaluation Committee’s November 2018 notes show that
they did reach a unanimous decision that Amplify’s proposal was the best ranked proposal. (PDF
p. 71 of 166.) Nothing in DPI’s records prior to the March 2019 meeting minutes reflect that the
Evaluation Committee was unable to make a vendor selection.
As you know, DPI had to get permission from DIT to cancel this information technology
procurement. 06 NCAC 06B.04041. The public records produced by DIT and DPI show that DIT
understood that DPI sought a cancellation because the cost proposals of Amplify and IStation “are
at a disparate price range (so unlike that there is no basis for comparison).” (DIT Approval Form
for Cancellation, March 25, 2019, Exhibit B). At the protest meeting you also pointed us to a
March 21, 2019 memo from DPI to DIT requesting a cancellation which provides no justification
for cancellation, and does not disclose the reasons for cancellation documented in the March 2019
Evaluation Committee minutes, attached as Exhibit C. The basis for cancellation conveyed to
DIT does not match DPI’s basis for cancellation. Indeed, there are no records reflecting that DIT
was told that DPI had already reviewed all the proposals fully and had evaluated the costs of each
proposal and ranked them on cost (and every other evaluation criteria.) Thus, any claim that DPI
could not evaluate the cost differential of the proposals is wrong, and not a valid basis for
cancellation of the RFP process.7
Therefore, the cancellation of the RFP in March 2019 was a flawed decision and cannot
stand.
II.

DPI changed the evaluation criteria and ranking of importance of criteria after
reviewing all the proposals. Incredibly, this looks like a blatant attempt to simply
give the contract to IStation.

Even assuming the “cancellation” of the RFP was appropriate, even though the
“cancellation” never seemed to change anything in the process except throw out the original

7

Attached to this letter as Exhibit F is a note about this memo highlighting issues around SOC 2
Type II third party attestation requirements.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 6
Evaluation Commitee’s work,8 a second fatal procedural flaw is that DPI changed its RFP
evaluation criteria and reordered them to the direct benefit of IStation, after it had already
reviewed and evaluated all the proposals. In short, after DPI rated Amplify as the 4th best proposal
on two of the least important RFP criteria (Vendor Cost and Vendor Financial Stability), DPI
reordered these two criteria to be the most important criteria in its final award evaluation memo.
DPI then invented two new criteria not listed in the RFP, and threw out the most important criteria
of the RFP – whether the vendor met the RFP specifications and state’s specific needs for Read to
Achieve. Only by “changing the rules of the game” was DPI able to justify an award to IStation.
As reflected in the original Evaluation Committee’s records and the RFP, there were six
evaluation criteria in this RFP. As the following slide from the December 4, 2018 presentation
to Superintendent Johnson shows (PDF p. 39 of 166), the criteria were ranked in the following
order:

The first three of these criteria (“Substantial conformity to specifications,” “RtA Desired
Specifications” and “Proof of Concept/Demonstration”) were deemed most important, as these
three factors determine whether vendors can actually meet the RFP’s specifications and provide a
product that meets North Carolina’s needs.
8

Even DPI’s June 7 award recommendation states it “recommends award under RFP No. 40RQ20680730A,” which is the allegedly “cancelled” RFP. (PDF p. 29, of 166.)

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 7

The last three criteria in order of importance were “Vendor Cost Proposal,” “Strength of
References,” and Vendor Financial Stability.”
In December 2018, Amplify was ranked #1 on the top three criteria of whether it was the
best product. It was ranked #4 on Vendor Cost Proposal and Vendor Financial Stability,9 but,
again, these were among the least important criteria.
However, in the DPI’s June 7 final award recommendation, suddenly Vendor Cost
Proposal and Vendor Financial Stability were ranked as the #1 and #2 most important criteria on
a new list of only four total criteria. DPI did this already knowing that it believed Amplify would
be ranked #4 on these criteria.
This re-ordering of the importance of the award criteria can only be seen by any rational
observer to be a blatant attempt on someone’s behalf to give this award to IStation. But that’s not
all DPI did. In addition, after making “Cost” and “Vendor Financial Stability” its top two criteria
(instead of #4 and #6), DPI threw out its top three criteria completely. Instead, DPI created two
new criteria: “formative and diagnostic assessment” and “personalized learning.” (PDF p. 20 of
166.) It is not clear what “formative and diagnostic assessment” means, since the whole purpose
of the RFP is to procure “valid, reliable, formative and diagnostic reading assessments.” (RFP
p. 6.) Furthermore, “personalized learning” is not among the required specifications of the RFP.
Instead, one of the 14 non-mandatory “desirable but not required” specifications at the end of the
RFP’s ten pages of specifications makes a reference to “a personalized blended approach to
assessment and learning.” Certainly Amplify was not informed by the RFP or at any point that
this would be one of only four award criteria.
The following graphic shows DPI’s wholesale change of the criteria from the RFP and
original Evaluation Committee to the final award to IStation last month (copy also attached to this
letter as Exhibit D):

9

Amplify has contracts for work in all 50 states. Amplify does not believe it has any issue with
financial stability. For purposes of the bid protest meeting, Amplify accepted DPI’s relative
ranking of the proposals. Even if Amplify was appropriately ranked fourth on this criterion, it
submits that any differential among the vendors was not substantively significant on this point,
which is consistent with this criterion being ranked last in order of importance.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 8

It seems obvious to any rational observer why DPI had to throw out the top three evaluation
criteria of the RFP and the original Evaluation Committee: Amplify scored in first place on all
three. There was no way DPI could justify an award to IStation under the RFP’s requirements.
As I discussed in the protest meeting, DPI has even admitted in public records that it had
changed the evaluation criteria. In a May 23 draft of its award recommendation memo, DPI stated
that it had based its decision “on the evaluation factors determined appropriate.”
This is in contrast to what DPI stated at the time of the RFP cancellation, when DPI
communicated to DIT that it intended to conduct negotiations to obtain best value “based on the
evaluation factors set form [sic] in the solicitation” and informed DIT that it will be “proceeding
in this manner.” (March 21, 2019 memo from DPI to DIT, Exhibit C). Instead, DPI proceeded to
disregard the top three evaluation factors of the RFP, elevate the importance of two lower
evaluation factors it already deemed Amplify to rank low on, and add two wholly new criteria.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 9

Excerpts of memo (full copy attached to this letter as Exhibit E):

Only choosing to use “evaluation factors determined appropriate” after the RFP has been
issued, and bids have been opened and evaluated, clearly violates North Carolina law. An agency
cannot change the rules of an RFP after the bids have been opened and evaluated. This would be
an invitation to bias and corruption. An agency must follow the rules of its RFP, and even after a
valid cancellation cannot materially alter the scope of the original RFP. See Humble Oil &
Refining Co v. Bd. of Alderman, 284 N.C. 458, 467, 202 S.E.2d 129, 135 (1974) (agencies must
follow their own rules); 09 NCAC 06B.0316 (“Negotiations shall not materially alter the intent or
scope of the original solicitation document.”) North Carolina requires competition for contracts
for goods and services, and if the award criteria of a procurement could be changed and re-ordered
after proposals have been opened and evaluated, an agency could simply “game the system” to
give an award to whoever they wish.
In the final June 7 award memo, the above reference to evaluating the proposals on “the
evaluation factors determined appropriate” was deleted. (PDF p. 21 of 166.) Yet, DPI did not
attempt to correct the problem. It did not reinstate the original RFP criteria and Evaluation
Committee determinations. Instead, the award recommendation memo contains the re-ordered and
new criteria detailed above.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 10

It should also be noted that the change of evaluation criteria also violates the 2017 and
2018 budget bills. Section 7.27(b)-(c) of the 2017 budget bill (S.L. 2017-57, p. 86-87) required
this procurement to consider “minimum” certain factors, which were recognized by the original
Evaluation Committee (PDF p. 37 of 166), and reflected in the detailed specifications of the
original RFP. The RFP also contained many additional mandatory required specifications. The
June 7 award memo does not show compliance with the RFP and budget bills as demonstrated by
the original Evaluation Committee. The Superintendent did not have discretion in selecting an
awardee, but had to accept the Evaluation Committee selection. S.L. 2017-57, Sec. 7.27(c). Even
so, there is evidence in the public records that the Superintendent may have tried to influence the
Evaluation Committee selection, telling them in a January 2019 meeting what he felt was important
in making a selection. (PDF p. 33 of 166)
The changing and re-ordering of the award criteria after the proposals had been opened and
evaluated (in a way that seemed plainly designed, by someone, to reject Amplify and select
IStation) clearly violates North Carolina procurement law. Mistakes can occur in procurements
despite the best intentions of an agency, and the solution to this is to correct the mistake. Here,
the award to IStation should be rescinded, and an award made to Amplify.
A resolution to this matter is important, as another school year will soon be starting for
North Carolina students. Some year round schools are already in session. In order for schools,
teachers and administrators to have a successful back to school transition, with the knowledge as
to which tool will be used for the Read to Achieve program, we encourage a timely resolution to
this matter so that the State can limit impact to the schools and students across the state.

 SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, L.L.P.

North Carolina Department of Public Instruction
July 24, 2019
Page 11

Conclusion
Thank you again for your attention to this matter. Please let me know if you need anything
further regarding the above mentioned materials. Pursuant to 09 NCAC 06B.1102(c)(2) and N.C.
Gen. Stat. § 1A-1, Rule 6(a) and N.C. Gen. Stat. § 1-593, we look forward to receiving a response
to the protest meeting by Monday July 29.
Very truly yours,
SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.

By:

J. Mitchell Armbruster

JMA/
Enclosure (exhibits)
cc:

(via email)
Eric Snider, General Counsel for SBE
Tiffany Lucas, Special Assistant Attorney General
Jessica Middlebrooks, Counsel for DIT