Paul L. Caron

Monday, May 10, 2021

California Bar Violated State Policy In Awarding $3.8 Million To ExamSoft For Online Bar Exam

California State Auditor, The State Bar of California It Is Not Effectively Managing Its System for Investigating and Disciplining Attorneys Who Abuse the Public Trust:  Section 3: The State Bar Appropriately Administered the Bar Exam During the COVID‑19 Pandemic, but Its Procurement of Exam Software Did Not Comply With Its Policy:

California Bar (2021)Key Points

  • At the direction of the Supreme Court, the State Bar developed a provisional licensure program for recent law school graduates who were negatively affected by bar exam delays caused by the COVID‑19 pandemic. In addition, to avoid the risks associated with in‑person contact during the pandemic, the State Bar modified how it administered the bar exam, allowing applicants to take the October 2020 bar exam remotely.
  • The State Bar did not follow its contracting policy when it entered into software agreements worth nearly $4 million related to the bar exam. As a result, it did not verify that it was using its resources responsibly. ...

The State Bar Entered Into Multimillion Dollar Agreements Without Adequately Justifying the Vendor It Selected
The State Bar’s procurement policy provides its staff with significant levels of discretion when selecting vendors for the administration of the bar exam. However, the State Bar did not follow its contracting policy when it entered into software agreements related to the bar exam. Although state law requires the State Bar to use formal competitive bidding procedures and obtain at least three competitive bids or proposals for information technology‑related goods and services in excess of $100,000, it provides an exception from competitive bidding for contracts related to licensing or proficiency testing examinations, such as the bar exam (exam exemption). In these instances, the State Bar’s procurement manual gives contract managers the authority to select the vendor to provide the required goods or services, rather than requiring competitive bidding. The State Bar used the exam exemption to approve both the five‑year, $3 million contract with ExamSoft and the $830,000 contract amendment we describe in the previous section.

However, the State Bar entered into these contracts without meeting its own requirement to evaluate whether it would receive the best value for the money that it spent. According to the State Bar’s procurement manual, when using a bidding exemption—such as the exam exemption—contract managers must use some type of evaluation to select a vendor that provides the State Bar with the best value, as the text box describes. Further, contract managers must document their efforts to determine the best value for a contract and must maintain these records within their department.

The State Bar’s ExamSoft contract manager stated that she did not document how she determined that ExamSoft provided the best value before submitting the April 2020 contract or the August 2020 amendment. She also stated that she did not perform a best‑value analysis, in part because the State Bar was not sure whether any other vendor could meet its technical needs. However, she could not provide any documentary support for this conclusion either. The chief administrative officer (administrative officer) confirmed that for the ExamSoft agreements, the State Bar did not enforce its procurement policies related to documenting the best value because of its knowledge about and history of contracting with ExamSoft. In response to our concerns, he stated that the State Bar developed policies requiring that contract managers submit to its procurement unit descriptions of their justification for using a competitive bidding exemption and of their best‑value analysis. Until it enforces these policies, the State Bar risks engaging in the kinds of practices that its general procurement manual is meant to prevent, such as failing to determine whether more cost‑effective alternatives exist.

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