e-Literate

Present is Prologue

Tag: Utah Education Network

  • Desire2Learn Drops UEN Suit

    I was able to speak with Desire2Learn Director of Marketing John McLeod to confirm that his comment on my previous post means what it appears to mean:

    All vendors enter every RFP process with the view that the process will be fair and equitable. We all invest resources to respond to RFPs, make presentations, and demonstrate our capabilities. In virtually every case, we accept the decision.

    Michael is correct, Utah law requires that a protest be made within 5 days of a decision, and an appeal – which must be filed in court – be made within 14 days of a denial. We have requested materials under Utah’s freedom of information laws. We will carefully review the materials when we receive them to better understand this process.

    Out of respect for institutions in Utah and our desire to concentrate on serving our customers, we are immediately dropping this appeal. We want to reassure everyone that our focus continues to be on improving education.

    On the phone, John re-iterated that Desire2Learn’s motivation was to better understand the decision-making process and making sure that it was fair.

    It would behoove colleges and universities to become more sophisticated about this sort of thing. On the one hand, ethics laws exist for a reason and, as one commenter on the previous post noted, it is perfectly reasonable for a company to want to ensure that those ethics laws were followed. (I recommend reading the whole comments thread, by the way; the range of perspectives is interesting.) On the other hand, these challenges definitely get abused sometimes. So it should be routine for schools to share information about these sorts of things when they happen, but also to be careful to get all the facts. Every situation is different.

    In fact, this whole situation might have played out differently had more of the details of the process been pro-actively published in the first place. That’s not a criticism of UEN; I recognize that there are all kinds of reasons why it is difficult (and sometimes even legally impossible) to share some of this. But in general, I do think that schools would benefit greatly by taking a position of publishing all evaluation process information by default and only making private what needs to be private, rather than the other way around. This change would require some non-trivial rethinking of processes and policies, as well as significant extra work, but the end result would be better contract negotiations based on shared data and best practices from peer schools as well as fewer (though higher quality) challenges after the fact.

  • Desire2Learn Sues UEN Over Instructure Contract

    This was reported in The Salt Lake Tribune and, more recently, in The Chronicle of Higher Education. As I have mentioned here previously, startup LMS developer Instructure recently won an LMS bid for the 140,000-student Utah Education Network (UEN).  Now, UEN, as a consortium of public schools, is bound by state laws regarding contract bidding. In their complaint, Desire2Learn alleges that (a) an employee of Instructure had been an employee of UEN or one of its membership schools at the time that the selection criteria were created and was involved with their creation (which would presumably be a violation of state conflict of interest laws) and (b) that UEN didn’t follow the selection criteria published in its RFP (which would presumably be a violation of the state’s procurement laws).

    These suits are a lot more common than most people realize. They usually happen either (a) because there genuinely was an unfair selection process (which definitely happens) or (b) because the litigating company is just using the lawsuit as a competitive bludgeon (which also definitely happens). It’s not immediately clear from the publicly available data which might be the case here. Certainly, nothing I have seen or heard yet comes remotely close to being a smoking gun regarding misconduct in the selection process. But there’s not much that’s publicly available yet.

    Here’s what we do know that should put some context around this:

    • According to Utah state law, if a company thinks there was something amiss with an award process, that company has five days to file a protest with the organization that granted the award.
    • Desire2Learn did file a protest within five days.
    • If the protest is rejected, then the challenging company has fourteen days to file an appeal.
    • UEN did reject D2L’s protest, and D2L did file for an appeal within fourteen days.
    • In order to get access to the kind of information that would, in fact, show whether there had been any hanky panky in the selection process, you’d need to request the process documentation from UEN via Utah’s Government Records Access and Management Act (GRAMA), which is the state’s equivalent to the Federal Freedom of Information Act.
    • Given the way these bureaucratic information request processes go, it is very likely that any company that thinks there might have been misconduct would have to file suit before it was able to gain access to the information that they’d need to prove it. This encourages a practice of filing a placeholder lawsuit before the facts are in.

    Based on the above, it might not make sense to read too much into this lawsuit at this point. At the moment, all we can be sure of is that Desire2Learn is preserving their right to challenge the decision. We won’t really get a sense of the true nature of the suit or the motives of the company until we get a few more moves into the chess game. I will report on the developments as I learn more.

    As a side note, I think it is important for these sorts of challenges to be more widely known in the education community whenever they happen, for transparency’s sake. If anybody is aware of such challenges taking place, please let me know.

    I have published both Desire2Learn’s protest and UEN’s response below the fold.

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