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Diebold Sues Massachusetts for "Wrongful Purchase" 422

Posted by ScuttleMonkey
from the better-lawyers-instead-of-better-products dept.
elBart0 writes "Diebold has decided to sue the commonwealth of Massachusetts for choosing a competitor to provide voting machines for the disabled. Diebold wants to force the state to stop using the machines immediately, despite the upcoming municipal elections in many towns. The commonwealth chose the competitor based on an open process that included disabled groups. Diebold executives appeared confused when encountering election officials who made an intelligent choice."
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Diebold Sues Massachusetts for "Wrongful Purchase"

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  • In Soviet Massachusetts, Diebold sues YOU!

    Sorry, I cound't stop myself.
    • by Mick Ohrberg (744441) <mick.ohrbergNO@SPAMgmail.com> on Monday March 26, 2007 @01:32PM (#18490067) Homepage Journal
      Wait a minute. I RTFA, and it actually does look like Diebold is suing because they're sore losers? No breach of contract, but just because they didn't win the bid? Am I missing something here? Does that mean Ford can sue me if I buy a Chevy?
      • by ubuwalker31 (1009137) on Monday March 26, 2007 @01:36PM (#18490127)
        I think they are alleging that there is a statute which says that the state must "pick the best" product, and that the government failed to do "due diligence" in selecting the product.

        Which, of course, is totally ridiculous.
        • by john82 (68332) on Monday March 26, 2007 @01:57PM (#18490473)
          Most state and federal purchase contracts (short of "sole source" contracts) have a procedure to follow for assessing the candidates. It is up to each solicitor to publish the evaluation criteria. What you don't always get is how they graded each component in the criteria. Because technology and price are only two of many criteria, the winning bid may not be the highest score in either. In any contract of sufficient interest to the bidders, there is always contention over who won and why. Happens in federal contracts all the time. Some companies tend to avoid formal protest (even when they feel there is cause) because they don't want to adversely affect their chances in the future. Others see reason to protest and do.

          Despite the typical Slashdot half-the-facts synopsis, don't read anything in Diebold protesting this contract. Diebold is after two things: to find out HOW the criteria were evaluated and to appeal the contract award. At this point, neither Diebold nor anyone on Slashdot knows how the candidates were evaluated. Therefore speculation about the validity of Diebold's case is idiotic.

          No, I don't have any connection whatsoever to Diebold. I have been involved in years worth of contracting. You'd be surprised how many times I investigated after a contract was awarded elsewhere, only to find out that it was someone on the customer side who had their finger on the scale.
          • by smooth wombat (796938) on Monday March 26, 2007 @03:01PM (#18491279) Homepage Journal
            Diebold is after two things: to find out HOW the criteria were evaluated and to appeal the contract award.


            In other words, Diebold wants to see the proprietary scoring format used to judge who should be awarded the contract.

            Why does that sound familiar?

          • Re: (Score:3, Informative)

            by Anonymous Coward
            At this point, neither Diebold nor anyone on Slashdot knows how the candidates were evaluated. Therefore speculation about the validity of Diebold's case is idiotic.

            Well, except going by the article, accessibility for the disabled seem to have been the deciding factor, and that AutoMark was considered better because it only uses one type of ballot rather than different types for disabled voters, and, that they came to this stance after sending machines out to organizations for people with disabilities for e
            • Re: (Score:3, Insightful)

              Diebold? Someone should just shoot these bastards, or stick 'em in barrels of ready-set concrete, and dump 'em into Chesapeke bay.

              C'mon. More was done for less, on the same ground in 1776. To bad you Yanks pissed away freedom and principle, killing the hard-won Republic.
          • Re: (Score:3, Informative)

            by babbling (952366)
            From the article:
            Galvin cited as an important factor in favor of AutoMARK its machine's use of one kind of paper ballot for disabled voters and others.

            He said that gave extra privacy to disabled voters.

            "If you happened to have only one disabled voter in a precinct, that person's ballot is easily identifiable," he said.
            ... so we actually do know at least one reason why AutoMARK was picked.
        • by Jim_Maryland (718224) on Monday March 26, 2007 @02:35PM (#18490947)
          People in government agencies occasionally select vendors on preference over criteria. Some are just a bit more creative about it in writing up the criteria so that only a single vendor can truly meet the criteria. For example, when I was a contractor to Prince George's County Maryland, I was asked to get quotes for the purchase of a Sun server and RAID. I had to provide at least three price quotes to the purchasing department. The CTO for the county (at the time...think she's in Jacksonville Florida now...unless of course she was removed from there) basically told me to ensure that Timebridge Technologies (reseller of Sun equipment) was the lowest price. I had to exclude two other companies prices when I submitted the purchase request. Granted that this isn't a major purchase like in the article but it can happen pretty easily. Oh, another interesting decision that was made before I worked at the county was the selection of their e911 system from Tiburon. The system they provided wasn't really adequately scaled for the county's size but I heard they were selected because of close ties between some of the county emergency management and the company's management.
      • Re: (Score:3, Informative)

        by rudeboy1 (516023)
        Generally, public organizations, i.e.- government bodies, have to go through a fairly lengthy process in order to buy goods on a large scale. They need to put out a Request For Papers, so they may fairly consider all possible bidders or vendors on a project, and then allow each bidder/vendor to competitively bid for the project. I didn't RTFA, but based on the summary treatment, my guess would be that they are suing on grounds of improper practice in this regard. It doesn't really have anything to do wit
    • by edbob (960004) on Monday March 26, 2007 @01:37PM (#18490159)
      Since Diebold, is suing the State of, Massachusetts, could I sue someone, possibly, for using too many commas in the summary? The use of, so many, commas, makes the summary too difficult, to read. Why must, people, insist on using, so many unnecessary, commas? It sounds like, William Shatner, in my head, when I read, it.
      • Re: (Score:3, Insightful)

        by soft_guy (534437)

        could I sue someone, possibly, for using too many commas in the summary?
        Yes, you can. Also, I implore you to do so immediately.
  • Good move! (Score:5, Insightful)

    by Vengeance (46019) on Monday March 26, 2007 @12:53PM (#18489459)
    I know nothing will motivate me to use a company's products like having them SUE my ass. Is Diebold kidding or something, here? I want to see them get smacked down, and HARD.
    • by sunwukong (412560) on Monday March 26, 2007 @12:59PM (#18489537)
      You're right -- based on previous examples we've seen here, the best business plan is not to sue the distributors, but to go after the end users.

      Next up: Diebold sues the voters but allows quick settlements of $3000 each.
    • Re:Good move! (Score:4, Insightful)

      by couchslug (175151) on Monday March 26, 2007 @01:10PM (#18489699)
      "I want to see them get smacked down, and HARD."

      So do many of us, and now we have a nice example of corporate conduct to bring up should our local governments want to buy their stuff. :)
    • by noidentity (188756) on Monday March 26, 2007 @01:11PM (#18489719)
      "I know nothing will motivate me to use a company's products like having them SUE my ass."

      Hey, it worked great for SCO! Oh, wait...
    • by flyingfsck (986395) on Monday March 26, 2007 @01:20PM (#18489857)
      Why? It works for the RIAA and for SCO - uhhh, well...
    • by Jason Earl (1894) on Monday March 26, 2007 @01:27PM (#18489993) Homepage Journal

      If I was purchasing voting machines for another state I would add: "doesn't sue potential customers when it loses a bid" to my list of qualifications. That would clearly put Diebold out of the running.

      Every once in a while you read about executives from a company that are so ridiculously inept that it is funny. Diebold certainly fits that description.

      • Re: (Score:3, Funny)

        And then you'd get sued by Diebold!
        • Re: (Score:3, Interesting)

          by 644bd346996 (1012333)
          By defining your criteria to include "doesn't sue [potential] customers" you can legitimately exclude Diebold. The only recourse Diebold would then have would be to contest the criteria themselves as illegal or discriminatory, which would be absurd. And fun to watch.
    • Diebold's position (Score:3, Informative)

      by mi (197448)

      To counter the editor's and the submitter's obvious bias against the company, here is their position as reported by a more professional journalist in TFA:

      William M. Weisberg , a lawyer representing Diebold, said in an interview yesterday that the company wants a review of the internal records showing how Galvin's office came to select AutoMARK earlier this year.

      You, me, and any other private-sector entity do not have to explain our whims and caprices when (not) buying something (which may, actually, be un

      • by phoenixwade (997892) on Monday March 26, 2007 @01:45PM (#18490269)

        You, me, and any other private-sector entity do not have to explain our whims and caprices when (not) buying something (which may, actually, be unfortunate) to any one other than, perhaps, family members or stock-holders. The government, however, is legally obliged to pick the best — all of us are the stock-holders...

        If, by best, you mean "lowest Bidder" you Might be correct, assuming the job isn't a "no-bid" contract. But I've yet to see a "Best" win a government bid, except maybe by accident. it's all about the lowest bid that will conform to the spec.

          I bid a lot of government contracts, I get some, I lose some. The ones I've lost have occasionally been to better concepts the ones I've wons have occasionally beaten some better work... in all cases the wins were based on who came in the lowest.

        I understand the basis of your remark - The process needs to be open, so we the taxpayers, know that our civil employees are doing their job correctly and spending our money they way we expect them to. Diebold should have the right to see if there was some back room hankey pankey going on, and the bidding process was fair. A lawsuit may be the only way to prove what they think they already know. Or, they could just be sore losers, trying to make the state pay for having the audacity to use a competitor. I guess we'll find out.... unfortunately, the tax payers in Mass. are the ones who will ultimately pay for this......
        • Re: (Score:3, Insightful)

          by shawn(at)fsu (447153)
          That's not always the case. If you bid a lot lower than the other proposals submitted it could show that you have a supreme misunderstanding of the work to be preformed. As such proposals can and are lost be bidding too low.
      • by FuzzyDaddy (584528) on Monday March 26, 2007 @02:02PM (#18490545) Journal
        Diebold is, obviously, acting in its own best interests, but that's how life in this country is

        If they lose this case (which seems likely) and their reputation is tarnished (are they saying the disabled testers opinions are wrong?) than how is this in their best interests?

        Being a jerk, either as an individual or a corporation, isn't only about agressively promoting your self interest. Sometimes it's just being a jerk.

      • by rifter (147452) on Monday March 26, 2007 @02:12PM (#18490669) Homepage

        You, me, and any other private-sector entity do not have to explain our whims and caprices when (not) buying something (which may, actually, be unfortunate) to any one other than, perhaps, family members or stock-holders. The government, however, is legally obliged to pick the best -- all of us are the stock-holders...

        Knowing the policies and the corruption levels of Taxachusetts, Diebold may well be right suspecting something foul...

        Way to counter bias. It's clear you did not even read the article, which says:

        Weisberg said the company is not alleging any improprieties by the secretary of state's office. Instead, it is saying the office acted in good faith but made a mistake in the selection.

        Diebold is alleging that they are clearly the best and therefore must always be picked. They are saying that the judge should award them the contract since the government made a mistake and picked a company other than theirs, which is the best. The government explained that the device they picked was reported as easier to use by disabled people and had some features which the Diebold machine lacks.

        This suit was deliberately filed on the day of an election in which the machines would be used. Its very premise is frightening; according to Diebold they must be the only electronic voting machine manufacturer and whenever any other manufacturer is picked by a government entity that entity must be ordered by a judge to go with Diebold instead. It represents an attempt by a corporation to subvert the democratic process, which makes the fact they are a voting machine manufacturer even more frightening. In any case, this kind of thing cannot be allowed. Companies should not be able to sue the government every time they lose a bid for a contract. That will just create chaos and we will get even less accomplished through the government than we already do.

        • Laches (Score:4, Informative)

          by HostAdmin (1073042) on Monday March 26, 2007 @03:36PM (#18491725) Homepage
          Given the timing of their lawsuit, wouldn't the Doctrine of Laches apply? They could have filed suit well in advance of an actual election day.

          Laches

          n. the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party (hurt the opponent) as a sort of "legal ambush." Examples: a) knowing the correct property line, Oliver Owner fails to bring a lawsuit to establish title to a portion of real estate until Nat Neighbor has built a house which encroaches on the property in which Owner has title; b) Tommy Traveler learns that his father has died, but waits four years to come forward until the entire estate has been distributed on the belief that Tommy was dead; c) Susan Smart has a legitimate claim against her old firm for sexual harassment, but waits three years to come forward and file a lawsuit, after the employee who caused the problem has died, and the witnesses have all left the company and scattered around the country. The defense of laches is often raised in the list of "affirmative defenses" in answers filed by defendants, but is seldom applied by the courts. Laches is not to be confused with the "statute of limitations," which sets specific periods to file a lawsuit for types of claims (negligence, breach of contract, fraud, etc.).
        • by greginnj (891863) on Monday March 26, 2007 @03:50PM (#18491891) Homepage Journal

          In any case, this kind of thing cannot be allowed. Companies should not be able to sue the government every time they lose a bid for a contract.
          You are exactly wrong. This kind of thing must be allowed. Companies (or persons) should be able to sue the government, or whoever else, for whatever reason they wish. Then, when their frivolous lawsuits come up before a judge, the suits are dismissed with prejudice, and the plaintiffs have to pay the defendant's costs.

          That will just create chaos and we will get even less accomplished through the government than we already do.
          Your implication being that selectively denying access to justice (according to principles chosen by whom? you?) will not create chaos? And that 'getting more accomplished' is a a value we should place higher than justice? I'm no lover of Diebold, but show me a place freer than the US that accomplishes that freedom via restricting access to the courts.
    • Re:Good move! (Score:4, Interesting)

      by Assassin bug (835070) on Monday March 26, 2007 @01:39PM (#18490179) Journal
      Ditto!

      Also, I smell a possible counter brewing. After all, it does create an anti-competitive atmosphere, to say the least. And think about this... State sends out something for bid, state fears risk of legal action from highest-priced competitor, state is forced to purchase based on fear instead of some cost-quality ratio, = you pay more for your public services and gain the risk of poorer quality. What a deal! I can't think of any other examples of this for contract bids involving the state -- but then I'm probably a little naive when it come to the details of contract bids. I'm thinking that, unless there was some pre-existing contractual agreement (although, based on the article, it seemed that the bidding process was carried out legally) Diebold may be on some very thin ice!
    • by Fritz Benwalla (539483) <randomregs@nOsPAM.gmail.com> on Monday March 26, 2007 @01:59PM (#18490505)
      As a very competent independent consultant who has to market my services to companies all the time, I can understand this. I'm also frequently astounded and confused when potential clients choose to use someone else. I therefore support Diebold in their efforts to set a precedent I can use to then sue them into using me.

      I would also encourage any other large company who so chooses to sue someone for not taking their calls, and sue vendors for not giving them services for free. If we get those two squared away I think we could all be much more successful.
  • Biased Summary (Score:5, Insightful)

    by setirw (854029) on Monday March 26, 2007 @12:53PM (#18489461) Homepage
    Although I don't support Diebold either, please keep personal opinion out of the summaries. Quotes like "diebold executives appeared confused when encountering election officials who made an intelligent choice" don't belong in objective news reporting.
    • by Vengeance (46019) on Monday March 26, 2007 @12:57PM (#18489507)
      Objective news reporting? You must be new here.
    • Re:Biased Summary (Score:5, Insightful)

      by Trails (629752) on Monday March 26, 2007 @01:00PM (#18489561)
      Joke's on you! Objective news reporting has no place in Slashdot!

      In all honesty though, a bit of editorialising is warranted here. What if Coke sued you because you bought a Pepsi? What if AMD sued you because you bought an Intel chip?

      Diebold's premise is moronic and it invites speculation as to how closely related the parents of their board members are, and which particular brand of crack their counsel are smoking.

      • Re: (Score:3, Funny)

        by jimstapleton (999106)
        On that note, I really hope this farce doesn't go through...

        Last thing I want to see is Sony getting a precident to sue people for not buying their stuff...
      • Re:Biased Summary (Score:5, Interesting)

        by rackhamh (217889) on Monday March 26, 2007 @01:11PM (#18489717)
        What if Coke sued you because you bought a Pepsi? What if AMD sued you because you bought an Intel chip?

        That's not quite the right analogy. It's more like if you were deciding between Coke and Pepsi, and told both companies that you'd be selecting on the basis of taste. Suppose now that Pepsi's research shows that people strongly prefer Pepsi over Coke -- but you choose Coke anyway. That's sort of what's going on here.

        That said, as I noted in my other post, I don't understand where the actual legal issue is in all this.
      • by vyrus128 (747164) <gwillen@nerdnet.org> on Monday March 26, 2007 @01:14PM (#18489759) Homepage
        which particular brand of crack their counsel are smoking.

        I can only imagine it went something like this:

        Diebold exec: ... so we want to sue them because they went with our competitors, and, uhm, that's not fair. Because we always win. And, like, why should someone else get to win? It's not fair.
        Diebold lawyer: *stifling laughter* That's the dumbest thing I've ever heard.
        Diebold exec: We're paying you how much?
        Diebold lawyer: ... ... ... we'll get right on it.

      • by jpellino (202698) on Monday March 26, 2007 @01:22PM (#18489899)
        Step 1: Establish a credit account with Oil Company A.
        Step 2: Call them and ask the price of oil next time you need some.
        Step 3: Get a load of oil from Oil Company B, who happens to have a better prioce that week.
        Step 4: Get your credit account cancelled by Oil Company A because they know how often you should need oil and you didn't order form them.

        No, it's not a lawsuit, but they're denying you credit for simply buying from their competition.

        This is all perfectly legal in the State of Connecticut. It's like driving by a Mobil station to get cheaper gas at Shell, then Mobil cuts up your Mobil card.

        Business today seems to run on the notion that if it's not specifically prohibited, we should try and do it, no matter how bad it looks. I get better ethics and learning curves from my third graders.

        • by hoggoth (414195) on Monday March 26, 2007 @02:04PM (#18490571) Journal
          > Get your credit account cancelled by Oil Company A because they know how often you should need oil and you didn't order form them

          I suspect you are misrepresenting this for greater outrage.

          Here, in New York, I can sign up for an oil account at a fixed price. If oil rates go up I am protected because I keep paying the rate at the time I signed up (with all kinds of possible modifiers from different oil companies, like the price is reset each year, etc).
          I am also locked in to that rate if oil prices go down.

          If oil prices go down, many people try to 'cheat' on their accounts by buying oil from a cheaper oil company at the current rate. Note that it is not necessarily that my oil company is more expensive, it is that I have signed up for a fixed rate account with protection against oil price variations.

          If the oil company sees that I have ordered significantly less than my house should use they will cancel my account because I have broken my deal with them. I can't enjoy the protection of a fixed price when the rates go up, but not buy from them when the rates go down. That's not the deal they are offering.

          That is like getting a fixed rate mortgage on a house. As long as the current rates are higher than my mortgage I pay my mortgage. If current rates go down I stop paying my mortgage and start paying a variable rate instead. You can't do that. You would have to break your contract, cancel your account, and refinance with someone else.
          But then, of course, you are no longer protected in case rates go up again.

          • by jpellino (202698) on Monday March 26, 2007 @02:49PM (#18491127)
            I know how the locks work, we were locked in for the past three years.
            This was on a will-call, no-lock, open account for credit.
            I specifically did not lock in this year, for as predicted, prices went down, and I made out better than if I'd locked in.
            Not only that, but I've had different people call the same company on the same afternoon as existing no-lock, prospective customer, (and against the current lock-in) and gotten two (three) different prices.
            I've been up and down this with the heating oil division of the state consumer protection agency, and they allow that it looks anti-competitive, but there's no law against it, they can't say everyone does it, but they're pretty sure the big ones do.
            I lucked out with two smaller dealers, one of which was willing to level with me on the outlook and believed their honest approach would be the better route. They got my business.

        • by BlackGriffen (521856) on Monday March 26, 2007 @02:08PM (#18490615)
          Seriously. When I was in undergrad I had a couple of friends who were in the business school. One of them characterized the business ethics program as, "If it's not already illegal then it's your moral obligation to do it in order to encourage people to make it illegal, because if you don't someone else will and they'll out-compete you..." etc.

          My friend was as flabbergasted as I was.
        • Re: (Score:3, Interesting)

          by rifter (147452)

          Business today seems to run on the notion that if it's not specifically prohibited, we should try and do it, no matter how bad it looks. I get better ethics and learning curves from my third graders.

          Government seems to be going the same way. Alberto Gonzales actually made that argument before Congress when he claimed that the right to habeas corpus was not specifically granted in the Constitution. He then went on to explain other violations of our rights by saying that those exercises of power were not s

      • Re:Biased Summary (Score:5, Insightful)

        by curunir (98273) * on Monday March 26, 2007 @01:28PM (#18490003) Homepage Journal

        What if AMD sued you because you bought an Intel chip?
        That's not exactly what's going on here. There's obviously a bit of history here. It's more akin to asking:

        What if some large entity produced a long list of selection criteria and then asked suppliers to submit bids and supporting documentation, no doubt costing real man hours of the companies submitting bids? At that point, the large entity chose one supplier without any feedback to either the chosen supplier or those suppliers not chosen.

        That's more what's going on here. I doubt Diebold has any reasonable expectation that the purchasing decision will be overturned. What they really want is access to the state's documents explaining why the state chose their competitor so they can address their weaknesses before they're asked for bids on other contracts. Given the effort that goes into the bidding process for these kinds of Government contracts, what they're asking for isn't all that unreasonable. But thanks to the screwiness of the US legal system, they can't just ask for something reasonable and expect to get it. They must ask for something entirely unreasonable and then demand the reasonable request as a means of supporting the unreasonable request. My guess is that Diebold's discovery motion will either be granted or denied at which point the suit will be dropped.
        • Re: (Score:3, Informative)

          by panaceaa (205396)
          What they really want is access to the state's documents explaining why the state chose their competitor so they can address their weaknesses before they're asked for bids on other contracts.

          That type of information should be available through the Freedom of Information Act, or the Massachusetts Public Records Law. In fact, even TFA says it's probably because Diebold machines spit out a different paper ballot for disabled people than for ordinary voters, which in a precinct that only has one or two disable
        • Re: (Score:3, Insightful)

          by Red Flayer (890720)

          Given the effort that goes into the bidding process for these kinds of Government contracts, what they're asking for isn't all that unreasonable.

          Sure it is. Why should government have to bear the expense of giving feedback to bidders? The costs of the bidding process are a business risk that is taken care of if they get the bid. Failure to get the bid does not mean that they are absolved of the risk they took.

          My guess is that Diebold's discovery motion will either be granted or denied

          Good guess.

          at wh

    • Re:Biased Summary (Score:4, Insightful)

      by HarvardAce (771954) on Monday March 26, 2007 @01:03PM (#18489611) Homepage
      don't belong in objective news reporting.

      Are you reading the same slashdot as I am? Since when has slashdot been about "objective news reporting"?

    • Re:Biased Summary (Score:5, Insightful)

      by drinkypoo (153816) <martin.espinoza@gmail.com> on Monday March 26, 2007 @01:03PM (#18489613) Homepage Journal

      Quotes like "diebold executives appeared confused when encountering election officials who made an intelligent choice" don't belong in objective news reporting.

      First, there is no such thing as objective reporting. Everything is biased. Period.

      Second, Slashdot is not about journalism. It's the offspring of a news aggregator (why the hell is "aggregator" not in the Firefox 2 US English dictionary?) and a forum. Slashdot doesn't report the news, Slashdot reports that someone else has reported the news.

    • Re: (Score:3, Insightful)

      by timster (32400)
      Though (as others have pointed out) the /. editors are not journalists, the quote you used seems quite objective to me. I read the article, and the Diebold people do in fact seem confused. Just because there are two sides doesn't mean that one of the sides isn't obviously being stupid.
    • by Otter (3800) on Monday March 26, 2007 @01:07PM (#18489657) Journal
      In fairness, as a Massachusetts resident, I'd also be confused by one of our officials making an intelligent choice. Next you'll be telling me they won't be bolting the machines into epoxy-filled holes in the ceiling!
    • Re: (Score:3, Informative)

      by Anonymous Coward
      The article makes it clear that Diebold had no factual basis for the lawsuit. They were surprised because they outcompeted AutoMARK in other markets (paraphrased from TFA).

      So, they asked a judge to prevent MA from using AutoMARK machines already in the state's posession. Diebold admitted they had not developed a case yet. This sounds like confusion to me about both government bidding, and civil law.
  • Insane. (Score:5, Insightful)

    by Teddy Beartuzzi (727169) on Monday March 26, 2007 @12:55PM (#18489477) Journal
    It's as if I'm reading the Onion when I read that article.

    I'm speechless.
  • by Anonymous Coward on Monday March 26, 2007 @12:56PM (#18489487)
    They had a flashing LED when a vote was cast. This caused Boston police to shut the city down while the bomb squad went to each polling place to blow up the machines.
  • by qwijibo (101731) on Monday March 26, 2007 @12:56PM (#18489489)
    It's about time some benevolent large corporation stood up to their customers. Customers left to their own decisions will frequently buy the wrong products. The manufacturer obviously knows far more about their product than the customer, so they are the only ones in a position to make a sensible decision about what other people should use.

    Clearly the best product for any situation is the one that the biggest company is pushing. It's not like companies get to be big in the first place by overcharging for their products and using the courts to keep competition down.
  • by antifoidulus (807088) on Monday March 26, 2007 @12:59PM (#18489535) Homepage Journal
    but wasn't one of Diebold's main selling points on using computerized voting over paper ballots that computerized voting systems help disabled people vote?(I do believe at some point they invoked the Americans with Disabilities act as a rationale for deploying these systems). So now disabled people actually help pick out a system and Diebold sues? (I guess according to Diebold disabled people aren't able enough to choose a system wisely :P)

    Words fail.
  • by Wise Dragon (71071) on Monday March 26, 2007 @12:59PM (#18489541) Homepage
    Area man Greg Norton was sued by multinational corporation PepsiCO for purchasing a competing product, Coca-Cola. Said attorney Mark Wiseguy, "We compete against Coke around the country all the time". "Based on the criteria set out by Mr. Norton, we had a fair degree of confidence we'd come out on top, and nothing we heard during the process dissuaded us of that confidence." Greg Norton is said to have replied, "Dude, where's my country?"
    • Re: (Score:3, Insightful)

      by necro81 (917438)
      Devil's Advocate: One key difference in this case is that the Commonwealth of Massachusetts, public entity, isn't quite the same as Greg Norton, private citizen, when it comes to purchases. When it's the taxpayer footing the bill, there's an imperative to have an open bid process without room for bias (positive or negative) or personal preference.

      Not that it matters much. Diebold's claim is bullshit. Sour grapes.
      • Re: (Score:3, Interesting)

        by Stone Pony (665064)
        You know, that's what I thought. I thought "this summary is a predictable Slashdot misrepresentation of a serious case about propriety in public spending".

        Then I read TFA, and found that they're not suggesting anything improper happened in the purchasing process, just that they'd have liked to have won and would like the court to say that they did. Their case really does appear to be as eye-rollingly, barking-at-the-moon insane as the summary makes it sound.

  • by Channard (693317) on Monday March 26, 2007 @01:00PM (#18489575) Journal
    .. we could get them to partner with SCO, that way we could have both massively stupid and nonsensical lawsuits dismissed in the same day.
  • by rolfwind (528248) on Monday March 26, 2007 @01:04PM (#18489627)
    Now, I wonder how many places around the country will start deciding not to give Diebold a shot at all by not inviting the company to showcase its products, to avoid the chance of getting sued. Good job Diebold! (And you would think that all the bad news the last years was justification enough not to pick Diebold.)

    In other news, a Toyota dealer is suing a man who bought a Honda, because "based on the criteria set out by the purchaser, we had a fair degree of confidence we'd come out on top, and nothing we heard during the process dissuaded us of that confidence." Actually, Toyoto is a decent manufacturer, make it a Yugo dealer.
  • Catch 22 (Score:5, Funny)

    by Anti_Climax (447121) on Monday March 26, 2007 @01:05PM (#18489639)
    They voted for the diebold machine, but they cast that vote *on* a diebold machine.

    It's easy to see how things got mixed up from there...
  • by Fex303 (557896) on Monday March 26, 2007 @01:05PM (#18489641)
    I RTFAed, expecting to find some sort of explanation for why exactly Diebold is suing.

    There isn't one. To save others the trouble, here's the closest thing to a reason they give:

    "We compete against AutoMARK around the country all the time," Weisberg said. "Based on the criteria set out by the Commonwealth, we had a fair degree of confidence we'd come out on top, and nothing we heard during the process dissuaded us of that confidence."

    Weisberg said Diehold was so stunned it did not get the contract that it now believes "it's worth the time and money" of going to court to challenge the contract's award, even though the company at this stage has no hard evidence of unfair treatment.

    I'm a little surprised they think they can sue just based on a gut feeling and expect to get away with it, but then again, it is Diebold. They seem to get away with just about anything.

  • by wonkavader (605434) on Monday March 26, 2007 @01:07PM (#18489653)
    I'd love it if someone would do this in every state where someone agreed to buy Diebold voting machines.

    Wrong actor, right technique. Based on security issues alone, we know Diebold is always the wrong choice. Just by a knee jerk methodology, we could keep the machines out of people's hands for another few months each time. It would generate some press, if nothing else.

    LBJ wanted his opponent accused of having sex with barnyard animals. It wasn't that he thought the charge would stick -- he wanted people to hear the candidate deny it. In this case, the response will be "well, your software is a joke -- completely insecure." We'll get to hear Diebold deny the charge. Any suit brought to force reopening analysis before purchase of Diebold's stuff would mean that, once again, they'd have to say "No, our software isn't laughably insecure. No the fact the our code showed up on the Internet isn't a problem. No, our keys are not from a hotel minibar and orderable over the Internet, and no, they're not all the same. No, we didn't miscount this race in this way or that race in that way." If they deny it enough, everyone will know that it's true. Oddly, though, in this case it actually WILL be true.

    So I think we should also allege that they have sex with barnyard animals.
  • ...for April Fools, isn't it? I mean, this isn't serious, is it? It's a joke, right?

  • by MyNameIsFred (543994) on Monday March 26, 2007 @01:18PM (#18489807)
    Many slashdotters seem surprised this is happening, comparing it to any company that sues its customers. They are ignoring the fact that government purchasing is different from a private customer purchasing a product. Whereas, a private customer can make a decision based on any arbritary criteria (heh, that sales lady sure is cute...), government agencies are suppose to be neutral. They define the criteria, and pick the best alternative, i.e., the one that best satisfies the criteria. The criteria must be fully disclosed to all participants, and all participates must be given the same information. Any deviations from this process can lead to a lawsuit. Right or wrong, that is what Diebolt is claiming.
  • by Lord_Ultimate (1049752) on Monday March 26, 2007 @01:19PM (#18489829)
    Rumor has it that the state voted twice - on AutoMARK machines the result was a unanimous win for AutoMARK. The second vote used Diebold machines and resulted in several votes for Pat Buchanan.
  • by yuna49 (905461) on Monday March 26, 2007 @01:19PM (#18489833)
    When I heard this story on the morning news here in Boston, my first reaction was, "why are they suing over losing a measly $9 million contract?" My guess is their legal bill if they were to pursue this to the end would easily run to seven figures. According to the article, Diebold's attorney stated that "the company is not alleging any improprieties by the secretary of state's office. Instead, it is saying the office acted in good faith but made a mistake in the selection." MA Secretary of State Galvin doesn't think there's any reason to re-open this matter; I doubt the courts will either.

    What's especially surprising is that this move comes after a recent Diebold SEC filing suggested that Diebold is considering leaving the voting machine business [arstechnica.com] because the bad PR the company has received is starting to affect its much more important ATM business. Banks don't want to put a machine in front of its customers whose manufacturer gets accused of building shoddy voting equipment every time an election is held.

  • by Anonymous Freak (16973) <prius...driver@@@mac...com> on Monday March 26, 2007 @01:20PM (#18489855) Journal
    I bought a Prius, and now I'm being sued because I didn't buy a Hummer!
  • by wandazulu (265281) on Monday March 26, 2007 @01:24PM (#18489935)
    ...that could potentially be affected by this. Imagine Microsoft suing you because you bought a machine with Linux instead of Windows: "You made the wrong choice in your OS...please install Windows or we'll sue."

    I suppose *that* particular situation is taken care of by the fact you get a machine with Windows whether you want to or not, for the most part, but if this were actually allowed, and actually went for Diebold (God forbid), then this litigenous society will have been taken to a whole new level:

    "You made the wrong choice flying SouthWest. Buy a ticket on United now or we'll sue."
    "You purchased Fords for your fleet vehicles when Chevy is the obviously better choice. Switch or we'll sue."

    etc.

    Now that I think about it, consider the NEW Pepsi challenge:

    "I like the taste of cup A."
    "You've made the wrong choice. Say you like what's in cup B or we'll sue."
    "Um...I like the taste of cup B?"
    "Great! Tell us why!"
  • Well obviously.... (Score:3, Insightful)

    by sdo1 (213835) on Monday March 26, 2007 @01:26PM (#18489977) Journal
    If they can't force their product into polling places, how on earth do you expect them to be able to manipulate the election results?

  • by srobert (4099) on Monday March 26, 2007 @01:36PM (#18490137)
    Diebold could have a case if, the state issued a set of criteria (all of which were quantifiable and accurately measured) in the RFQ. The state has an obligation to the people of Massachusetts to select the best product. But the state would have some wiggle room if any of those selection criteria were not quantifiable, (such as the lack of confidence in the electoral process associated with the Diebold name). Those sorts of criteria could outweigh all the others. It's unlikely the state didn't leave that wiggle room in its decision-making process. If Diebold wins this I'm going to have to consider suing all of the employers who didn't hire me.

  • by mpapet (761907) on Monday March 26, 2007 @01:39PM (#18490193) Homepage
    This kind of litigation is quite typical in public agency contracting.

    When the 600 lb. gorilla doesn't get the contract these are some of the tricks:

    1. Back-room negotiating with the agency. (re: Microsoft/ODF in MA)
    2. Negotiate with the contract winner to have _the contract winner_ become a sub-contractor to the 600 lb. gorilla "or else." Very common.
    3. Arrange some campaign donations and kick the issue upstairs to have the contract awarded to the 600 lb. gorilla. (re: Microsoft/ODF in MA)

    When those steps don't work, then the litigation flies.

    Just because diebold the ./ whipping boy, doesn't mean this is new or different. This is one reason why gov't purchasing is so high-stakes. The litigation can be endless.
  • Manufacturers. Grrr. (Score:5, Interesting)

    by pointbeing (701902) on Monday March 26, 2007 @01:54PM (#18490425)
    I work for an agency under DoD. I had some end of year fundage to spend so I decided to buy some printers and networkable scanners - about $100k worth of gadgets. I'd requested HP hardware because that's pretty much what the infrastructure here is geared to support.

    Because of the size of the contract award the thing went out for open bid - and I was contacted by another printer manufacturer. I won't tell you their name, but their initials are L-e-x-m-a-r-k.

    Strongarm tactics ensue. First the local contracting office asked me to define printing and scanning requirements as the Other Printer Company believes they can meet my requirements at a lower cost - but we won't mention the fact that all the supplies I have in stock are from the Printer Company I Wanted To Use and adding another hardware vendor would be a logistical nightmare.

    So - starting with the network scanners I start looking at hardware specs. The Other Printer Company says they can meet my requirements, but since a digital sender is an input device as opposed to an output device, I would have to get the new hardware certifiied by the network spies and I don't have time to do that, so for that part of the procurement I got the hardware I requested.

    The printers were another matter. Once you've specified dpi, print speed and networking capabilities you've pretty much got to go with whoever brings the lowest bid - so the Other Printer Company won that.

    During the acquisition process I felt like I was being strongarmed by the Other Printer Company and since I couldn't give a good reason not to use their hardware I have to use it. If I'd have had a week instead of a day to process the procurement I probably could have.

    I have learned that I need to fine-tune my hardware requirements to keep it from happening again - but manufacturers can and will sue the government for buying from somebody else.
  • This is not uncommon (Score:4, Interesting)

    by Uhlek (71945) on Monday March 26, 2007 @01:55PM (#18490429)
    For anyone that's spent any amount of time in government contracting, you'd know this isn't uncommon.

    Government acquisition contracts are supposed to go to the best product. Determining "best" is supposed to be based on an objective vendor selection process where certain aspects of each product are given a score, and the aggregate makes the decision. These vendor selection processes are sometimes not written well, often by people who don't really understand what it is they are comparing.

    Let me give you an example from one vendor selection I worked on, for Ethernet switches. One of the criteria was "Supported VLANs." The product with the most supported VLANs was given a 1, and anyone less was given a fraction thereof equivilant to how many it supported. In this case, vendor A supported 4096 VLANs, while Vendor B supported 1024 VLANs. In this one criteria, vendor A was four times better than Vendor B, even though we only needed support for, at most, a dozen VLANs, which both devices could easily support.

    In this instance, our complaints were heard and the problems were corrected.

    However, often, this doesn't happen, and bogus criteria is used to make a decision.

    On rare occasions, though, you'll even see vendor selection criteria written by people who've made a decision on which vendor they want to purchase, and the criteria is skewed to ensure that a certain product is purchased. This is rarely corruption, usually it's someone who already "knows" that a given product is better, and is simply trying to "make sure the right decision is made." For example, a Linux zealot writing vendor selction criteria for deciding on whether to go with Linux or Microsoft servers.

    The exact vendor selection criteria, often being secret, leaves vendors that had reasonable belief that they should have won completely baffled as to why they lost. Unlike commercial transactions, where there is no recourse, they can bring the case to court to see if there was any improper behavior in the vendor selection process.

    This actually benefits the taxpayer, as it gives oversight to procurment which is paid for by your tax dollars.

    Just because in this case it's a company nobody likes, everyone is crying foul. But, in reality, it's a Good Thing.
    • Re: (Score:3, Funny)

      by DamnStupidElf (649844)
      The exact vendor selection criteria, often being secret, leaves vendors that had reasonable belief that they should have won completely baffled as to why they lost.

      Maybe one of the criteria was "Cannot be unlocked with a hotel wet bar key."
  • W T F ? (Score:3, Insightful)

    by swschrad (312009) on Monday March 26, 2007 @02:01PM (#18490537) Homepage Journal
    that one cries for a summary judgement from the bench.

    "Well, let's see here, Diebold... you have no permanent record, you have a litany of hacks, your top management has a strong candidate bias on record, you act like assholes and sue everybody you don't like. Case dismissed with prejudice, get out of my court and stay out of my state. Diebold to pay all legal bills, back to the founding fathers."
  • by Irvu (248207) on Monday March 26, 2007 @03:58PM (#18492019)
    The contract dispute in question seems to center on the use of systems for accessibility, not the purchase of a complete set of new systems. According to The Verifier [verifiedvoting.org] Massachusetts use a mixture of Central-Count and Precinct-Count optical scanners for their elections with accessible devices for the disabled. That being the case I doubt that Diebold has much of a case.

    For those unfamiliar with the dispute AutoMARK is a ballot marking system that allows voters with disabilities to use a touchscreen, keypad, or "binary switch" (sip and puff or gell-pad for people with no hands or little control over said hands say due to parkinson's or stroke) to fill out a printed ballot. The voter's choices are marked on the ballot using an ink that makes them suitable for scanning by any standard optical scanner (including the Diebold and ES&S scanners used in Massachusetts. The advantage of this system is that it enables voters with disabilities to cast the same type of ballot as everyone else thus avoiding the second-class-voter problem.

    Diebold has no such device. In juristictions that use Diebold systems for accessibility, voters with disabilities cast their vote on a Diebold AccuVote-TS or TSX, a touchscreen Direct-Recording-Electronic system. Such votes are saved to the machine's internal flash disk and tallied at the end of the night separately from the votes cast on the optical scanners by every other person.

    This is problematic for two reasons. Firstly, this means deploying two parallel voting systems on election day and tallying them separately. In effect this creates two classes of voters and subjects disabled voters to using a second-tier system. Similarly Diebold has yet to deploy the same range of accessibility features as are available on the AutoMark. For example they have yet to produce a usable "binary-switch" system.

    For that reason I find it unlikely that Diebold will win this case because they are selling, quite simply, an inferior product.

  • by Lonath (249354) * on Monday March 26, 2007 @05:48PM (#18493747)
    Isn't it ironic that Diebold wants to investigate the paper trail for how certain goverments did things? Wouldn't it be great if having paper trails was the standard for all things governmental, including voting, so that people could check voting machines' accuracy after an election. And isn't is cool how Diebold opposes those paper trails for their voting machines? Maybe the good peeople of the Commonwealth can just go up to the judge and say their internal procedures were followed correctly, and Diebold doesn't need to see any evidence other than the word of the officials? What do you think that chances of that are?

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