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Lawsuit attacks contracting practices

A West Virginia testing company is suing the state because it allegedly awarded a contract to an out-of-state company based on inaccurate and misleading information, and the state Department of Health and Human Resources signed off on the information.

The information in question includes the DHHR considering the employment of a subcontractor by a company, even though both the company and the subcontractor deny any official agreement.

Professional Healthcare Development made the allegations in a lawsuit filed late Thursday in Kanawha County Circuit Court.

PHD, an Ona-based company, filed the lawsuit against David Tincher, director of the state purchasing division. The lawsuit alleges Tincher's division and the state DHHR acted inappropriately in awarding a contract to Pearson Vue for the testing and training of nursing assistants.

PHD has administered the tests in question - including the Nurse Aide Training and Competency Evaluation Program, the Educate the Educator program and the Approved Medication Administration Personnel certification - since November of 2001, said Denise Cihy, who runs PHD with her husband, Mark.

The Cihy's company has bid for and received the contract every time it came up since 2001, and submitted a proposal again when it was put up for bid Aug. 2 of this year, Denise Cihy said. She was therefore surprised when the purchasing division informed her in November that her company did not receive the contract this year.

Pearson Vue was recommended for the contract on Aug. 6, according to a letter from a nurse with the Office of Health Facility Licensure and Certification to a DHHR administrator. Pearson Vue is a computer-based testing portion of parent company NCS Pearson. The company's headquarters are in Minnesota but its branch office in Pennsylvania submitted the bid proposal for this contract.

Pearson Vue submitted the highest bid of the three companies. However, it was deemed the only company to meet all of the bid requirements, according to purchasing division records.

After receiving the rejection, Cihy filed a Freedom of Information Act request for the other companies' bids. In reviewing Pearson Vue's documentation, she said she found several areas troubling.

Most notably, she said she saw that Pearson VUE included Ben Dickens and his company, Consulting International, in its documentation. The company listed Dickens in its organization chart and labeled him and his company as a "key team member."

The Pearson Vue proposal states Dickens developed and delivered the Educate the Educator workshops - a portion of the certification listed in the contract parameters. That portion is intended for "key employees only," according to the state's request for bids.

Dickens has provided the Educate the Educator services for PHD since the company received the bid for the testing in 2001, Cihy said. She was surprised that he had agreed to work with Pearson Vue and asked him about his involvement.

Dickens told her he is not a subcontractor with Pearson Vue, but a company representative had asked him if he was interested in becoming one. In a letter sent to the state, Pearson Vue maintains he is not an employee but that it intends to hire him as a subcontractor while referencing his company as "our subcontractor" repeatedly in its bid proposal.

The DHHR states that Pearson Vue properly identified Dickens as a contractor.

In a signed letter dated Nov. 13 and addressed to Cihy, Dickens said he had spoken with a representative from Pearson Vue before the contract was awarded but told that person he was already providing his services to PHD.

"I did not or have not signed a contract in either my name or in my company name, Consultants International, on or before August 2, 2012. I am not a subcontractor connected with Pearson Vue," Dickens reportedly wrote in an email dated Nov. 15 to Mark Cihy.

A phone message left Friday with Dickens was not returned.

On Nov. 15, Cihy sent a letter to Tincher protesting Pearson Vue receiving the contract. She cited Dickens' statements that she believes go against the company's representation of his employment. She also pointed to several other mandatory requirements of the contract that she believes Pearson Vue did not meet.

On Nov. 19, Tincher sent a letter to Arthur Valentine, a senior vice president for Pearson Vue, and Bryan Rosen, purchasing director for the DHHR. The letter tells Valentine to stop doing any work that might be connected to the contract.

Valentine responded to the allegations in a Nov. 26 letter, sent to an attorney in the purchasing division. In the letter, he states Pearson Vue never listed Dickens as an employee. He points to a part of the proposal that states Pearson Vue intends to subcontract with Consultants International, but maintains the proposal "does not state or imply" that Dickens or his company were under contract with Pearson Vue.

At least twice, Pearson Vue's proposal states its intent to subcontract with Dickens. It also explicitly refers to its "subcontractor, Consultants International" 10 times.

In a Dec. 5 letter from Rosen to Tincher, Rosen denies that PHD's claim is valid. PHD alleged Pearson Vue failed the mandatory requirement of providing employee resumes, qualifications and tasks that person would perform, as stated in Rosen's letter. This is a pass or fail measure, and Pearson Vue passed because it included the proper information for Dickens, Rosen writes.

"The (bid) evaluation committee determined that Pearson Vue included the resumes of their key staff and that Ben Dickens, Ed. D was properly identified as a contractor," Rosen writes.

He also denied Cihy's other claims that Pearson Vue did not meet testing requirements concerning the method in which the tests would be administered. Tincher sent Valentine a letter the next day that stated his company could resume any work it had been doing under this contract. 

Rosen is also involved in legal allegations, filed by the DHHR's top two attorneys, alleging improper contract actions.

In whistleblower lawsuits filed by Susan Perry, DHHR's deputy secretary for legal affairs, and Jennifer Taylor, its general counsel, the two accuse Rosen and others in the agency of having a "track record of errors," according to Daily Mail records.

The lawsuit alleges Rosen bungled a $200 million computer contract, rebid once for unknown problems and a second time because of a conflict of interest. Rosen and his boss, Warren Keefer, "so mishandled" those first two bids that Taylor and Perry had to spend hours responding to requests from the Legislative Auditor's Office and fixing a third bid request document so that problems didn't occur yet again, according to lawsuits and Daily Mail records.

The whistleblower lawsuits are in connection to a different contract as well, a massive marketing contract that led to Taylor, Perry and John Law, a DHHR public relations employee, being placed on paid-leave since mid-July.

The request for bids in the nurse assistant training contract states the agreement is an "open end" contract with an estimated value of $200,000. However, it also states the DHHR will not pay anything for the service. The company awarded the contract should collect money from those taking the testing or training through fees, the request states.

Pearson Vue's bid amount for the cost of administering the tests and training was $260,930. PHD's was $245,800.

Diane Holley-Brown, purchasing division spokeswoman, declined to answer questions as to why a contract that involves no state money needs to go through a bidding process. She said she could not comment because of the pending litigation.

Marsha Dadisman, DHHR spokeswoman, said the same thing. A call placed to a phone number listed in bidding documentation for Vincent of Pearson's Vue was answered by another person, who directed a Daily Mail reporter to call the company's corporate office. A message was not returned.

Denise Cihy said Sunday her attorney had heard from an attorney with the purchasing division Friday. The attorney said the division is going to "proceed cautiously" and temporarily halt all work being done by Pearson Vue under this contract, according to an email the Cihy's received from their attorney. Denise Cihy said this would not affect her decision to bring the lawsuit.

PHD is asking the Kanawha Circuit Court to prevent Pearson Vue from performing any work under the contract. The purchasing department said PHD and the third company that bid failed to meet all of the mandatory requirements of the bid.

PHD wants the judge to determine that no company met all the bid requirements and prevent Pearson Vue from applying again because it's original proposal contained false information concerning Dicken's employment.

The lawsuit was posted to Circuit Judge Charles King, said a member of the court office. Tincher has 20 days to respond to the lawsuit from the day it is filed, and had not done so as of Friday morning.

Contact writer Dave Boucher at 304-348-4843 or david.boucher@dailymail.com. Follow him at www.twitter.com/Dave_Boucher1.


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