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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."
There isn't one. To save others the trouble, here's the closest thing to a reason they give:
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.
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.
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.
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.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
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:
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...
In Soviet Washington the swamp drains you.
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.
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.
> 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.
- For the complete works of Shakespeare: cat
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.
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.
"Action without philosophy is a lethal weapon; philosophy without action is worthless."
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.
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.).
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 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.