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.
Interested in the LMS market? Sign up to receive more information about our LMS Market Analysis service, including a free sample newsletter!
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.
Here is D2L's protest letter:
And here is UEN's response: