A contract signed late Tuesday night between Superintendent Mark Johnson and Istation may have violated North Carolina’s administrative code governing technology procurements.  Those rules require approval of the state’s Chief Information Officer for such an emergency purchase except under very specific conditions–conditions which may not have been met.

On Tuesday, a Wake County Superior Court judge declined to intervene in the ongoing contract dispute between Amplify and Istation on behalf of the Department of Public Instruction (DPI).  DPI had petitioned to have the court lift a contract stay put in place by the Department of Information (DIT) while DIT reviews the controversial process Johnson followed in awarding Istation an $8.3 million contract.

The ruling was issued before 11:00 AM, as you can see on this tweet by Education NC’s Liz Bell:

The judge’s decision briefly left schools without access to a K-3 reading assessment as required by Read to Achieve legislation.  

Almost exactly twelve hours later (10:36 pm according to the time stamp on the contract), Johnson inked an emergency purchase of Istation for $928,570.

In unusually late-night email to school districts sent immediately thereafter, Johnson explained that he had just made an emergency purchase as allowed under state procurement rule 09 NCAC 06B .1302 to ensure schools could meet legal requirements on testing.

Here’s the $928,570 question:  Why was Mark Johnson conducting this business at such a late hour?  Wouldn’t Tuesday afternoon have been a great time for it? Better yet, wouldn’t a government agency conducting itself prudently have come up with a contingency plan well in advance of the judge’s Tuesday morning decision, knowing schools would need to administer tests the next day?

The answer to that question may lie in the procurement rule Johnson cited:

09 NCAC 06B .1302 EMERGENCY SITUATIONS OR PRESSING NEED

(a) An agency may make purchases of goods or services in the open market in cases of emergency or pressing need. (b) When emergency or pressing need action is necessary, and the estimated expenditure is over the purchasing agency’s delegation, prior verbal approval shall be obtained from the State CIO unless the purchase must be made outside of business hours, during holidays or when state offices are otherwise closed. Subsequently, if the expenditure is over the purchasing agency’s delegation, an explanation of the emergency or pressing need purchase shall be reported in writing to the State CIO.

Note that permission for an emergency purchase such as the one Mark Johnson made requires approval of the Chief Information Officer unless “the purchase must be made outside of business hours, during holidays or when state offices are otherwise closed.”  

The key word here is must.  Why was it this purchase couldn’t be made during business hours?  Why didn’t Mark Johnson seek approval of the CIO in purchasing Istation?

This is probably a good time to mention that North Carolina’s Chief Information Officer happens to be Eric Boyette, head of the Department of Information Technology–the same agency which issued the stay of the Istation contract to begin with.  

The amount of the emergency Istation contract may also be significant.  According to State Board of Education policy, “Any contractual obligation that would result in an expenditure of [$1 M] or more requires the approval of the SBE.”  That same State Board grilled Johnson about the purchase at Wednesday’s monthly meeting during a tense exchange which made it seem unlikely the board would have approved such a move.  Since the Istation price tag came in 71K under the threshold mandated in board policy, Johnson didn’t need their approval.

On January 13, the Department of Information Technology’s administrative hearing on the procurement process Johnson followed with Istation is set to begin.  The hearing officer is DIT General Counsel Jonathan Shaw, and Mark Johnson has already blasted Shaw for “the incompetence with which he has conducted this review process.”  

Get your popcorn ready.