Diebold Sues Massachusetts for "Wrongful Purchase"

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."

Reasons? We don't need no stinking reasons.

[Fex303]

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.

Re:Biased Summary

[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.

Diebold doing themselves no favors

[Dan Stephans II]

I was just reading the other day that Diebold (which is a very old company) is looking at possible exit strategies from the electronic voting arena because of the "bad name" it is giving them. (read more here [betanews.com])

Not only are their machines vulnerable (which is what gives them a bad name) they then exacerbate the situation with a ridiculous lawsuit like this? "We didn't win the contract and there is no evidence of wrongdoing but we either want the court to award us the contract or re-open the competition." It's even more absurd because the selection process in the public sector is very open and very documented. While 9 million is a lot of money, I don't think it's worth the rep hit they are going to take, yet again.

Business as usual in government purchasing

[MyNameIsFred]

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.

Re:Makes sense (no, really!)

[spun]

RTFA. Diebold isn't claiming corruption. They are saying that Massachusetts made a mistake. They are honestly claiming that in a fair competition, there is no way anyone could have possibly picked AutoMARK, and that the people who made the choice were simply wrong and should be forced to pick them. Nothing about corruption at all. In fact, they specifically say it isn't about corruption.

If it were as you say, it would almost make sense.

Diebold's position

[mi]

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 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...

Diebold is, obviously, acting in its own best interests, but that's how life in this country is — we don't need people/companies to all be good and exemplary. Our system simply manages to pit the disagreeable qualities of some against such qualities of the others. In addition to the obvious free-market examples, we also rely on one (quite possibly crooked) politician to expose dishonesty of her opponent...

Re:In Soviet Massachusetts...

[ubuwalker31]

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.

Some Selection Criteria is Not Quantifiable.

[srobert]

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.

Re:In Soviet Massachusetts...

[rudeboy1]

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 with MA possibly thinking Diebold is crap. Diebold can easily claim that they were not given the opportunity to bid on the project. Oftentimes, especially on Slashdot, there is a notice of an initial lawsuit, which makes all the headlines, but the case is thrown out soon after, or there is no followthrough by the plaintiff. (This is Jack Thompson's signature move). There is a reasonable possibility that this is one of those suits, filed in order to make a headline, but as soon as the evidence is considered, the suit will be dropped. Conversely, Diebold may in fact not have been properly considered for the project, thus they may have a legitimate claim. MA doesn't get to exclude them initially based on their past history. They can exclude them further down the line, but usually, if it is based on a prejudice of past experience, they have to be creative about it. Unfortunately, the way government bidding works, if a company that makes a product that is widely know to be crap, is listed as the lowest bidder on the project, they can still sometimes be selected based on bidding price and promised delivery time. It's a funky way of doing business, but it also allows oversight into the process because they are using tax dollars. Most people look at this model, and scream Haliburton, but I am pretty sure that does not apply, due to the way those contracts are handled, being in a different country, etc..

Re:Try buying heating oil in CT...

[hoggoth]

> 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.

Re:Biased Summary

[panaceaa]

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 disabled voters, removes the anonymity from voting.

From my perspective, it seems like Diebold is being a bully and trying to scare people from choosing competitors in the future.

Re:Diebold's position

[rifter]

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.

Identified vs anonymous votes - might be a reason?

[ehud42]

(Too many people aren't reading to the end of the article before guessing why Diebold might have lost.)

At the end of the article is this bit:

Galvin said his office surveyed disabled groups and municipal election officials during the evaluation process after letting those groups test the competing machines. He said there was a consensus in favor of the AutoMARK.

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.

Does Diebold's system use different (read: identifiable) methods depending on the person's disability? That would certainly be a vote against them....

Re:In Soviet Massachusetts...

[Jim_Maryland]

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:In Soviet Massachusetts...

[Ogive17]

Believe it or not, I have read some very good summaries in the past that don't end with some lame attempt at humor. At least for me, those personal comments at the end wind up ruining the article because they put a pre-conceived idea in my head.

Give me a link, give me a summary of the link, and if you have a comment leave it with the rest of them.

Re:Diebold's position

[coast215]

Its interesting you would call it Taxachusetts. 10 Seconds of research (http://money.cnn.com/pf/features/lists/taxesbysta te2005/index.html [cnn.com]) would have shown you that Massachusetts has lower taxes than 31 other states and is below the national average. But then again, this is /. so why would I expect you to think before you type?

Re:In Soviet Massachusetts...

[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 evaluation.

They could of course be lying, but it sort of makes sense. So I say there are perfectly valid grounds for speculation.

Laches

[HostAdmin]

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.).

No surprise given the systems.

[Irvu]

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.

Re:Diebold's position

[carpltunl]

Yes but the numbers you reference are also misleading in that they are per capita numbers and that should include many people who pay no taxes. Nor do they consider the average income. A better measure would be average tax per dollar earned.

Try this http://en.wikipedia.org/wiki/State_tax_levels [wikipedia.org].

Re:In Soviet Massachusetts...

[babbling]

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.