08/20/2014 02:53 pm ET Updated Oct 20, 2014

Why the Jindal Loss Was Expected Regarding Louisiana's PARCC Injunction

On August 19, 2014, District Judge Todd Hernandez ruled that the Jindal administration's suspension of the Louisiana state testing contract was to be temporarily lifted until the pro-Common Core (CCSS) full case against Jindal and his administration goes to court. (For backstory, click here.)

I was surprised at the judge's ruling because the Louisiana Department of Education (LDOE) spliced the Partnership for Assessment of Readiness for College and Careers (PARCC) assessment into an already-existing "sole source" testing contract with Data Recognition Corp (DRC).

Pearson has been awarded the PARCC assessment contract, not DRC.

It is possible that Pearson could hire DRC as a PARCC subcontractor. As it is, DRC has been hired as part of a team to develop assessments for the other federally-funded consortium, Smarter Balanced. However, there is no way that DRC is the sole source for PARCC.

This means that Louisiana will fund an extra vendor (DRC) in its not-so-"sole source" procurement of PARCC.

Testing contract laundering.

Thus, the judge's decision surprised me.

However, I have since read pertinent sections of the court ruling, and it seems that Jindal's attorneys tried to let the contracts "speak for themselves." Thus, the judge appears to have missed the John White sleight-of-contract in grafting PARCC into what was supposed to be a contract used by DRC for transition to PARCC.

Consider this statement from the ruling:

Evidence presented proves there was much discussion among [the state board of education, the Division of Administration -- DOA, and the Office of Contractual Review -- OCR] relating to the contract with Data Recognition Corp (DRC) and its status as "Sole Source" vendor for the implementation of common core. This evidence indicates this activity took place as far back as December, 2010. The contract with DRC was eventually approved as a "Single Source" contract with a contract term that ran through 2015. [Emphasis added.]

What is missing here is that DRC could not be a "sole source" contract provider for CCSS because DRC has not been awarded the PARCC assessment contract. DRC was a "sole source" provider for the transition to the PARCC assessment.

DRC cannot be a sole source provider of PARCC. DRC must do business with Pearson in order to deliver PARCC to Louisiana.

I understand this. Then again, I have not only studied the documents but also heard DOA Chief Kristy Nichols explain the contracting and auditing processes.

I heard the explanation.

In contrast, Jindal's attorneys apparently did not provide their own people to explain White's grafting PARCC into the DRC contract. As noted in Hernandez's decision:

The defendants did not present any witnesses at the hearing but did introduce documents during the examination of witnesses, and the defendant, Bobby Jindal... There was not evidence presented at the hearing attempting to establish or prove any reason or reasons for any of the actions taken by the defendants in "retracting" or "suspending" the contract with DRC except what was testified to by plaintiff's witnesses on cross examination and from what the court was able to read and review. The defendants further failed to produce any evidence that the plaintiffs have violated any law concerning procurement of state contracts. [Emphasis added.]

In short, it seems that Jindal's defense team of Jimmy Faircloth handed over the DRC contract and expected the judge to "get it."

Not good enough by a long shot.

Very poor move, in fact.

If having no expert testimony was Faircloth's idea, Jindal should seriously consider retaining a better lawyer.

If it was Jindal's idea in order to avoid cross examination, then he needs to realize he will be his own undoing in court.

Jindal's defense attorney needs to get qualified individuals on the stand clearly explaining to the judge how White twisted the intent of that sole source contract into a means of avoiding proper procurement. This is not a case of "just hand the paperwork over to the judge and he'll surely understand."

As it is, Jindal now must face a judge who has already been primed to believe that Jindal's defense has no merit.

The Jindal administration is seeking a stay of Hernandez's ruling and an expedited writ of appeal to the First Circuit. They believe Hernandez is wrong.

Hernandez is wrong. However, Jindal's defense really dropped the ball on this one- for whatever reason.

Get a contract procurement expert on that stand, or don't be surprised at continued loss.

Originally posted 08-19-14 at