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In the Matter of Protest of Scheduled Award of Contract

July 29, 2011

IN THE MATTER OF PROTEST OF SCHEDULED AWARD OF CONTRACT T0711/RFP 10-X-20725


On appeal from the Division of Purchase and Property, Department of the Treasury.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 1, 2011

Before Judges Carchman, Graves and Messano.

Appellant, Pearson VUE (Pearson), appeals from the final decision of the Department of the Treasury, Division of Purchase and Property (the Division) upholding the award of State Contract T0711 -- "Testing Services: Long Term Care Facilities & Assisted Living Residences" -- to respondent PSI Services, LLC (PSI). We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

On May 18, 2009, the Division issued RFP 10-X-20725 (the RFP) to solicit bid proposals to engage a contractor to administer a competency evaluation program for the certification of nurse aides, personal care assistants, medication aides and assisted living administrators and to maintain a registry of the certified individuals in the positions listed above, which must include an internet-based system whereby interested parties can verify the status of an individual[']s certification.

Section 3.6.2 of the RFP required that the contractor:

1. Administer the examination in eight (8) test centers throughout the State of New Jersey mutually agreed upon between the Contractor and the Department.

3. Ensure each test center operates Monday through Friday during regular business hours (a minimum of 7 hours per day between 8AM and 6PM) and each test center offers evening testing at least once weekly (until 8PM). In addition, the Contractor shall ensure each site offers testing on at least one weekend (Saturday or Sunday) each month. Hours may be adjusted on the day the center is offering evening testing (for example 12:00PM-8PM).

An addendum to the RFP was issued on July 10, 2009. It reduced the number of necessary testing sites from eight to six, and further provided, "Adjustments to this schedule will be considered with the agreement of both parties." Section 3.6.1 of the RFP required that the contractor:

3. Accept major credit cards, money orders, business checks and process checks by phones for payment of any required fee. The Contractor is not required to accept personal checks. The "check by phone" process is known as direct debit.

Section 3.4.2 stated:

5. Questions in the cognitive test for the assisted living administrator shall be based on a Department approved curriculum implemented by a Department approved training program. The test shall be written for a 6th grade reading comprehension level and the test shall include at least 100 operational items and may include up to ten

(10) pre-test items; a maximum of four (4) hours shall be allocated for candidates to complete the examination.

Section 3.4.1 required the contractor to ensure that:

3. Written tests shall be available as a back-up when CBT [(computer based testing)] is unavailable for an extended period of greater than 48 hours.

4. All examinations are subject to the Department's approval regarding the percentage of used test items; at least twenty percent (20%) of the test items must be new items.

Section 3.4.1 also required that the contractor implement a number of quality control measures, including the following:

1. Provide ongoing test item development activities during the duration of the contract.

2. Continually develop and implement procedures to ensure quality control, confidentiality and security of all test items, examinations, and materials, including electronic software, during all stages of test development, administration, and delivery to and from test sites.

3. Generate, review, and edit test items.

6. Utilize test question writers with expertise in the area of nursing and resident care in long-term care facilities and nursing, resident care, pharmacy issues and facility administration in assisted living facilities.

Section 6.3.1 explained the technical evaluation criteria

employed by the Division, and included ...


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