Common-Core Deal in Florida Sparks Legal Feud
Lawsuit filed after state terminates contract
If the implementation of the Common Core State Standards is an opportunity for government and the private sector to work together toward a mutual goal, a bitter dispute in Florida over a website planned to prepare teachers and students for the standards is proving the messy realities of what can happen when government agencies and private companies can't get along.
The Florida Department of Education terminated a $20 million contract with Infinity Software Development on Oct. 30, about a week after the company filed a lawsuit against interim Commissioner of Education Pam Stewart. The dueling public disclosures outlined a bitter dispute in which both sides claim the other acted too slowly and too sloppily on the project.
While the project is in litigation, Florida educators are left without a preparation resource officials expected would be in use by now, in advance of the curriculum being in place by 2014. Assessments for the common standards are set to begin in the 2014-15 school year.
"It's the definition of building a car while it's careening downhill at 60 miles per hour," said Mark Pudlow, a spokesman for the Florida Education Association, an affiliate of the National Education Association and the American Federation of Teachers.
As a majority of states scramble to meet the common academic standards that were unveiled in 2010, Florida's dispute could serve as a cautionary tale for the unusually complex public-private relationships developing to make sure the new standards are used in classrooms.
"It's one thing to procure for buses and desks, but if you're procuring for a more complicated product, you need more expertise and resources to manage contracts," said Douglas Levin, the executive director of the State Educational Technology Directors Association, or SETDA, based in Glen Burnie, Md. "It needs to be a collaborative effort, and the state needs to take a leadership approach."
Last December, Florida's education department signed the contract with Infinity, an established software company based in Tallahassee. Infinity would create a website for students and teachers featuring mini-assessments and lessons aligned with the common standards and Florida's Next Generation Sunshine State Standards that were adopted in 2007. Tutorials in high school biology, English/language arts, civics, and mathematics would prepare students for more rigorous state testing, and eventually the common assessments, which are being developed in the common-core subjects of English/language arts and math.
MARCH The Florida Department of Education chooses Microsoft to design and build an education website for students and teachers, in preparation for the common core and the state’s Next Generation standards. Infinity Software Development challenges the contract between the state and Microsoft, claiming that Microsoft should be disqualified because the company would not relinquish ownership of the software to the state.
JULY The education department agrees to hire Infinity to create the website.
DEC. 9 Infinity and the department sign the final contract for the website, for $20 million. The contract period ends June 30, 2014.
JAN.-FEB. Infinity and Loretta Costin, the Florida education department’s chief of staff, meet to discuss communication channels for the contract and payments for contract milestones.
MAY 8 Ms. Costin informs Infinity of her pending retirement, and that interim state Chancellor Pam Stewart will be the department’s point of contact for the contract going forward.
MAY 23 Infinity delivers a letter to Ms. Stewart claiming the department is not meeting project-review deadlines, is not updating the timetable to account for delays, and does not have enough project-management resources.
AUG. 15 At a meeting, the education department asks Infinity to relinquish its responsibility to create content aligned to the common standards, and focus only on the technology portion. Infinity responds that technology and content are so intertwined that it would make more sense to turn over both components to the department.
SEPT. 5 Infinity sends a letter of complaint to the then-chairwoman of the state board of education, Kathleen Shanahan.
OCT. 3 The education department sends a “notice of concern” to Infinity President Jon Taylor, writing that it considers the contract to be “highly at risk” because the company’s missed deadlines put the project behind schedule by six months, and the quality of content is “inadequate.”
OCT. 15 Mr. Taylor responds to the department’s letter addressing its concerns. “The department has demonstrated a consistent pattern of inaction,” it says.
OCT. 17 The department sends a “notice of default” to Mr. Taylor. “As a result of Infinity’s inability to adequately perform on this contract, this important resource will not be available to Florida students as scheduled,” it says.
OCT. 22 Infinity files a lawsuit against Ms. Stewart for breach of contract, citing the company’s loss of profits, employees, and reputation.
OCT. 30 The education department terminates the contract with Infinity. In a letter, the department says it is in the process of reprocuring the contract.
Infinity earned the contract in a roundabout way. Florida had initially turned to the Microsoft Corp. to develop the website in early 2011. However, Infinity challenged the contract, claiming Microsoft's intent to retain ownership of the software was not in the state's best interest, according to the Associated Press. Infinity won the contract in July 2011 and signed it a few months later.
Right away, the relationship went bad, according to court documents and correspondence between the two parties. Infinity accused the education department of not altering the contract's timetable to account for Microsoft's dismissal, and of missing review deadlines. The department claimed the company missed its initial deadlines and had fallen six months behind schedule.
Both sides accused the other of missing meetings and communicating poorly. The department said Infinity "thwarted" efforts to "foster an environment of cooperation and support," accusations that Jon Taylor, Infinity's president, called "inaccurate and offensive."
A particularly heated exchange arose over allegations that Infinity wasn't properly submitting content produced for the website to a panel of experts, as required, and that factual errors resulted.
For example, one civics lesson suggested a discussion on the meaning of "the pursuit of happiness" in the preamble to the U.S. Constitution, though the phrase is actually found in the Declaration of Independence, the department said. In response, Mr. Taylor said the department didn't understand the point of the lesson, which was to draw comparisons between the ideals in both documents.
Students were supposed to begin work on the site last month, and in an Oct. 3 letter, the department said it would be "extremely damaging" if lessons weren't delivered this school year. On Oct. 22, Infinity sued the state, and a week later the state terminated the contract.
Infinity, which told the AP it laid off 17 employees and halted work with 100 contracts because of the situation, requested a payment of $3.23 million for the completed work.
The state education department reportedly has spent nearly $2.5 million on the project already, according to the AP. The department is now in the process of rebidding the contract, the letter of termination says.
Test scores suggest there is a need for the resources. Just a few months ago, a more rigorous Florida Comprehensive Assessment Test, or FCAT, caused student scores to plunge and led the state's board of education to lower the test's passing score.
The education department declined to comment about the legal feud.
Mr. Taylor also declined to comment, citing the ongoing legal situation, but issued a statement. "Our goal was to reach a resolution that would be in the best interest of everyone, especially Florida's students and educators," he said. "Unfortunately, it now appears that a fair, objective arbiter, in this case the courts, may be the best means to addressing our concerns."
Florida is not the only state looking for large-scale ways to use technology to prepare for the common standards, Mr. Levin of SETDA said.
Massachusetts and Ohio are negotiating with vendors to build a shared, comprehensive training and classroom-management website for teachers in both states. It will be Ohio's first statewide online instructional system, said John Charlton, a spokesman for the Ohio education department. In addition to serving as a digital repository for lessons aligned with the common core, the site will allow for creation and delivery of lessons and assessments, search of online educational resources, and student data reporting and analysis.
"It's an ambitious project," Mr. Charlton said.
Complex projects, like the one Infinity was hired for, bring with them difficult management decisions. In August, the Florida education department asked to meet with Infinity to discuss "turning over the content-development portion" of the contract to the state. It appears that Infinity hired subcontractors to help create content aligned with the common standards for the site, and the department wasn't satisfied with the quality.
The content creation was too "intertwined" with the technology component for the responsibilities to be separated, Infinity responded.
Disputes over content development could become more frequent on common-core projects, because the standards are such a large shift for educators, administrators, and vendors, Mr. Levin said. And with budget and personnel constraints, that content development could be increasingly contracted and subcontracted to parties further from the classroom.
"Staffing levels are only going in one direction," Mr. Levin said. "This is more complicated work than states have done before." He added: "Departments absolutely have expertise, but they have few experts."
Vol. 32, Issue 12, Pages 6-7Published in Print: November 14, 2012, as Common-Core Deal Sparks Legal Feud for Fla., Tech. Firm