Standardized testing company sues Utah for $2.6 million, claiming its work was ‘adequate’

(Rick Egan | The Salt Lake Tribune) A student practices the SAGE test with his 3rd grade class at Elk Run Elementary school on Wednesday, April 22, 2015.

The standardized testing company fired by Utah education officials last year after its glitches stopped thousands of students here from finishing their exams has now filed a lawsuit against the state, countering that it was never paid $2.6 million owed for its “adequate performance.”

Questar Assessment Inc., in the case filed Tuesday in 3rd District Court, said the Utah Board of Education alleged there were deficiencies in its testing software and used those to cancel its contract in July 2019. But, the company claims, that doesn’t absolve the state from still having to pay the invoices that came before that — and it stands by its services.

“The lawsuit is the next step in seeking a final resolution,” said Brad Baumgartner, the company’s chief operating officer, in a statement.

The state board of education strongly disputes the allegations, though, saying Questar failed to perform in its inaugural rollout and left many teachers and students here questioning the validity of their test results.

After a year-end testing window marked by major computer glitches and massive delays, at least 3,546 exams, known as RISE, came back with missing scores, the state has said. Some kids reported not being able to log in. In a few schools, the grade on the screen when students finished didn’t match the reports that teachers later downloaded. And in others, the exam closed in the middle of a student filling in answers and wouldn’t let the user log back in.

Because of the concerns, the state decided not to use the scores for annual school grades this year. And it ended the 10-year, $44 million contract it had with Questar, which had similar issues in other states prior to Utah signing the deal in 2018.

Bryan Quesenberry with the Utah Attorney General’s Office, which is representing the state in defending against the lawsuit, said the board of education “terminated its 10-year contract with Questar because of Questar’s poor performance during the first year roll out of its Utah assessment platform, not the other way around."

After canceling the contract, the state asked Questar for $6.75 million in damages, which it was entitled to do under the agreement. And it intended to use some of that money to pay off what it still owed in invoices.

But in the suit, Questar, which is based in Minnesota, claims it’s not liable for damages — despite the exam interruptions that spanned five days and failing to meet several deadlines, including not going live with spring testing as scheduled on March 19, 2019, according to a later state audit.

The filing said: “Questar performed its obligations under the contract for over a year. During that time, Questar met several significant performance requirements.”

It argues that the testing data was still valid and useable despite the problems. And, it adds, it was a “mutual agreement” to end the contract. So the company believes the state still owes it $2.6 million.

The two parties met to mediate the dispute in April, but did not come to an agreement.

“Because the lawsuit was just filed, there is not much more to be said at this very early stage of the litigation,” Quesenberry added. But, he noted, the board “takes this lawsuit seriously.”

The state switched to Questar in 2018 after previously contracting with American Institutes for Research (AIR) to conduct what was then called the SAGE test. AIR had zero issues in administering the tests, but SAGE had failed to gain traction in Utah since it was implemented in 2013. More and more parents each year opted their students out of the annual testing for grades three through eight.

The board hoped a new company and a new name, RISE, might change the attitude toward taking the exams. That didn’t pan out.

Now, after canceling the contract with Questar and with strong criticism from lawmakers over the ordeal, the board has returned to AIR to conduct the assessments. That contract will be for three years — not including this year because of the coronavirus pandemic — and $21 million. And the state will move forward with fighting the suit from Questar.

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