TIFFANY Y. LUCAS EDUCATION SECTION PHONE: 919-807-3426 FAX1919-807-3198 JOSHUA H. GENERAL August 22, 2019 VIA HAND DELIVERY Eric Boyette, State Chief Information Of?cer North Carolina Department of Information Technology 3700 Wake Forest Road Raleigh, NC 27609 Re: Motion for Reconsideration of Order for Temporary Motion to Stay RFP NO. 40-RQ20680730 (DPI) Dear Mr. Boyette: Pursuant to 9 NCAC 68.1 1 15, please ?nd enclosed for filing with your of?ce Motion for Reconsideration of Order for Temporary Motion to Stay. Thank you for your attention to this matter. Sincerely, @Wiwd \3 dim Tiffany Y. Lucas Special Deputy Attorney General TYL:scd Enclosures Cc: Jessica Middlebrooks (Counsel for DIT) [Via E-mail] Kieran J. Shanahan (Counsel for IStation) [Via E-mail and US. Mail] J. Mitchell Armbruster (Counsel for Amplify) [Via E-mail and US. Mail] 114 W. EDENTON STREET. RALEIGH, NC 27603 919.716.6400 P. 0. Box 629. RALEIGH, NC 27602-0629 BEFORE THE CHIEF INFORMATION OFFICER STATE OF NORTH CAROLINA DEPARTMENT OF INFORMATION TECHNOLOGY Proceeding No. 000-1000A AMPLIFY EDUCATION, INC., Petitioner, V. MOTION FOR NORTH CAROLINA DEPARTMENT RECONSIDERATION 0F OF PUBLIC INSTRUCTION, ORDER FOR TEMPORARY MOTION TO STAY Respondent, and IMAGINATION STATION, INC, Intervenor-Responde nt NOW COMES Respondent North Carolina Department Of Public Instruction pursuant tO Rule 09 NCAC 06B .1115(b) of the North Carolina Administrative Code and Rule 54 of the North Carolina Rules of Civil Procedure, and ?les this Motion for Reconsideration of the North Carolina Department Of Information Technology?s Order for Temporary Motion to Stay. In support of this Motion for Reconsideration, DPI shows DIT the following: INTRODUCTION On June 7, 2019, DPI awarded the State?s Read to Achieve contract to Imagination Station, Inc. (?Istation?). More than 15 calendar days later, Amplify ?led its untimely protest letter. Without waiving Amplify?s procedurally defective ?ling, DPI agreed to meet with Amplify on July 18, 2019. After carefully considering Amplify allegations and concerns, as well as the arguments delineated in Amplify?s July 24 Supplemental Letter, the State Superintendent issued his ?nal decision denying Amplify?s protest. On August 2, 2019, Amplify ?led a Request for Administrative Hearing and Final Decision, as well as a Motion for Stay. On August 20, 2019, DIT entered an ?Order for Temporary Motion to Stay? summarily enjoining contract with Istation and as well as a Notice of Contested Case. I. Order Staying the Contract Constitutes a Defective Injunction Although entitled a ?Motion for Stay,? Amplify?s motion seeks a preliminary injunction pursuant to North Carolina Rule of Civil Procedure 65(a) to prohibit DPI from finalizing implementation of Istation?s reading diagnostic tool. (Brief of Petitioner In Support of Motion for Stay p. 18). The Information Technology Procurement Rules, (as promulgated by DIT), make clear that the North Carolina Rules of Civil Procedure apply in contested cases before a hearing officer. 09 NCAC 06B .1105(a). North Carolina law explicitly provides that a preliminary injunction may not issue without notice and a hearing. 65(a); see also Perry v. Baxley Dev., Inc. 188 NC. App. 158, 655 460 (2008). The notice requirement is mandatory and affords an adverse party an opportunity to be heard and present evidence lili?? the injunction takes effect. Id. A preliminary injunction entered without notice impairs a substantial right of the adverse party and contradicts the statute?s intent to provide each party with a ?full and fair investigation and determination according to strict legal proofs and the principles of equity.? Jolliff v. Winslow, 24 NC. App. 107, 109, 210 221, 222 (1974). Moreover, the proceeding between Amplify and DPI constitutes a contested case as de?ned by .0. Gen. Stat. see also 9 NCAC 06B .1104. Prior to taking any action in a contested case, the adjudicating agency, (DIT in this instance), is required to give all parties an opportunity for a hearing ?without undue delay? and must provide notice no fewer than fifteen days before the hearing. NC. Gen. Stat. DIT entered its one-sentence Order Without holding the mandatory hearing or providing DPI with the statutorily required notice. In fact, DPI had not received any notice or acknowledgement of the contested case until DIT entered the injunction on August 20, 2019. This procedure appears to con?ict with both state law and own procurement rules. Beyond its procedural defects, the injunction is also inadequate in substance. In its one-sentence Order, DIT does not make any ?ndings of fact or conclusions of law; nor could DIT do so having given only one party - Amplify - an opportunity to be heard and present evidence. By rule, every injunction set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail . . . the act or acts enjoined . . CRCP 65(d). Further, the directives of an injunction may not be so vague and ambiguous that a party ?cannot comply with its terms in the absence of clarification.? See Hopper 0. Mason, 71 NC. App. 448, 322 193 (1984). order entering the injunction states only that Amplify?s motion is granted. The operative language fails to set forth the specific relief granted or any directives outlining the actions that DPI must take or actions that DPI is enjoined from taking. failure to comply with this rule renders the Order vague and has left DPI with no guidance on whether to or how to halt the state?s Read to Achieve programs. procedure in granting the injunction deprived DPI of any opportunity to present favorable evidence and has irreparably harmed the agency?s ability to ful?ll its statutory duties. By entering a procedurally and substantively defective injunction, DIT acted in violation its own procurement rules, the North Carolina Administrative Procedure Act, and fundamental due process. II. DIT Failed to Give DPI Adequate Opportunity to Respond Under procurement rules, a non-moving party is permitted to ?le a response to any motion ?within the time permitted by the Rules of Civil Procedure.? 09 NCAC 06B .1115(b). The North Carolina Rules of Civil Procedure allow DPI thirty days in which to ?le a response to Amplify?s Motion for Stay, which was served on August 2, 2019. 12. By rule, DPI has until September 3, 2019 to ?le a response to Amplify?s motion. By granting the injunction during the pendency of response period, DIT has improperly abrogated procedural rights as specified in the North Carolina Rules of Civil Procedure and own procurement rules. This premature action deprived DPI of an Opportunity to present favorable arguments and deprived DIT of an opportunity to consider all evidence, rather than relying on only one party?s brief before rendering a decision with chaotic statewide rami?cations. nonadherence to its own contested case procedures have unduly prejudiced DPI and necessitate that the injunction be immediately dissolved. CONCLUSION The purpose of a stay, preliminary injunction, or similar equitable relief is to preserve the status quo during the pendency of an action. This stasis is meant to provide relative certainty and protect both parties from concrete, irreparable harm. By suddenly halting the Read to Achieve contract, DIT has accomplished the opposite. By acting contrary to statute and its own rules, DIT deprived DPI of an opportunity to demonstrate the signi?cant confusion, disorder, and harm that abruptly stopping the Read to Achieve program would have and is now causing. Specifically, due to this injunction, students will not have access to ?y diagnostic reading assessment tool after Amplify?s current contract with DPI expires this Saturday, August 24, 2019. Further, there are schools around the state that have already started the school year and implemented Istation. Over 327,000 students have successfully enrolled in Istation, and thousands of educators have completed Istation trainings. This procedurally questionable injunction will force DPI and schools around the state to cancel teacher trainings, pause data migrations, and delay vital learning activities. Students, teachers, and school administrators have now been thrust into an untenable state of uncertainty mere days before the start of the school year for most schools. Unfortunately, failure to follow proper procedures when granting the injunction precluded DPI from raising these issues before they could cause harm to our state?s public school system. Therefore, DPI respectfully requests that DIT immediately dissolve its injunction and afford DPI the full time to respond, as provided by the North Carolina Rules of Civil Procedure. Respectfully submitted this 22nd day of August 2019. JOSHUA H. STEIN Attorney General Alma/NA innate Tift?di?ly Y. (Lugas Special Deputy Attorney General N.C. Bar No. 26237 tlucas@ncdoj.gov NC. Department of Justice PO Box 629 Raleigh, NC 27602-0629 (919) 807-3426 Counsel for Respondent DPI CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing MOTION FOR RE CONSIDERATION OF ORDER FOR TEMPORARY MOTION TO STAY was served on counsel via electronic mail transmission and by depositing the same in the United States mail, ?rst class postage prepaid, and addressed to: J. Mitchell Armbruster Smith, Anderson, Blount, Dorsett, Mitchell Jernigan, L.L.P. PO. Box 2611 Raleigh, NC 27602 Attorney for Petitioner Kieran J. Shanahan Brandon S. Neuman Andrew D. Brown Shanahan Law Group, PLLC 128 E. Hargett Street, Suite 300 Raleigh, NC 27601 Attorneys for Intervenor-Respondent . This the air/day of August 2019. dim?rm 1n ?at/WW Tifilaildy @L?ilcas Special Deputy Attorney General