State Procurement of Academic Assessments
WHEREAS, Article VII, Section 14 of the Louisiana Constitution of 1974 expresses the prohibition that “the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.”;
WHEREAS, elements of this constitutional prohibition reveal themselves in statutory mandates that public bodies conduct competitive procurement processes designed to promote public confidence in the cost and quality of goods, ensure transparency by requiring public notice, and safeguard the important public policy that public funds – always derived from taxpayers – be spent wisely;
WHEREAS, the Department of Education and the Board of Elementary and Secondary Education are each subject to the Louisiana Procurement Code (La. R.S. 39:1551, et seq.), the laws on Professional, Personal, Consulting, and Social Services Contracts (La. R.S. 39:1481, et seq.), and other laws applicable to procurement by public bodies;
WHEREAS, the Department of Education and the Board of Elementary and Secondary Education joined the Partnership for Assessment of Readiness for College and Careers (“PARCC”) and committed to purchase PARCC’s assessment product before the product was even developed and to utilize its Common Core aligned assessment product and adopt them into its accountability and teacher evaluation systems, without giving due consideration to the development of other comparable assessment products and thereby failing to undertake a transparent, competitive process;
WHEREAS, pursuant to R.S. 39:1708, the Department of Education and the Board of Elementary and Secondary Education are prohibited from entering into a cooperative purchasing agreement for the purpose of circumventing the laws governing procurement;
WHEREAS, participation in PARCC does not exempt the Department of Education or the Board of Elementary and Secondary Education from following other Louisiana laws, promulgated rules, or Executive Orders applicable to the procurement of goods and services by purchase, contract, or by cooperative endeavor;
WHEREAS, the chief procurement officer of the state has authority, pursuant to La. R.S. 39:1597, to determine that only one source is available to provide a required item. However, the determination that PARCC is the sole source of assessment products appears to be precluded in this case, as there are a number of potential competitors with assessment products available for review and comparison, making the use of a transparent, competitive process possible;
WHEREAS, Louisiana Revised Statute 39:1497 requires that the Director of the Office of Contractual Review determine that all professional, personal, consulting, or social services have complied with the procedures set forth in La. R.S. 39:1481, et seq.;
WHEREAS, in accordance with La. R.S. 39:1596, Executive Order BJ 2010-16 establishes procedures for the procurement of small purchases not exceeding twenty-five thousand dollars ($25,000) as exempt from the competitive sealed bidding requirements of the Louisiana Procurement Code, with purchases exceeding that amount requiring competitive sealed bidding and adequate prior notice;
WHEREAS, the Legislature, during the 2014 Regular Session, has appropriated approximately $20,000,000 for the Department of Education to purchase these assessments for the 2014-2015 fiscal year commencing on July 1, 2014, and the expenditure of such a large amount of taxpayer-funded public funds clearly carries with it the responsibility that a transparent and competitive process be utilized.
NOW THEREFORE, I, BOBBY JINDAL, Governor of the State of Louisiana, by virtue of the authority vested by the Constitution and laws of the State of Louisiana, do hereby order and direct as follows:
SECTION 1: The Department of Education and Board of Elementary and Secondary Education are directed to undertake a transparent, competitive procurement process in accordance with Louisiana law to obtain academic assessments for Louisiana’s schoolchildren.
SECTION 2: The Division of Administration is directed to conduct a comprehensive accounting of all Louisiana expenditures and resources related to PARCC, what services and products have been received in return for such expenditures, and copies of all contracts or other agreements in place or in negotiation for the purchase of an assessment. The Division of Administration is further directed to ensure the Department of Education and Board of Elementary and Secondary Education’s compliance with Louisiana law in the procurement of academic assessments for the 2014-2015 school year and subsequent years.
SECTION 3: All departments, commissions, boards, agencies, and officers of the state of Louisiana, or any political subdivision thereof, are authorized and directed to cooperate in implementing the provisions of this Order.
SECTION 4: This Order is effective upon signature and shall continue in effect until amended, modified, terminated, or rescinded by the governor, or terminated by operation of law.
IN WITNESS WHEREOF, I have set my hand officially and caused to be affixed the Great Seal of Louisiana, at the Capitol, in the city of Baton Rouge, on this 18th day of June, 2014.
Secretary of State