Verified Voting Blog: Dominion Sues to Stop New York City Contract with ES&S

Update I, 2/19/10 – Court documents posted, links here

In a surprise move, Dominion Voting Systems has filed an Article 78 lawsuit in New York State Supreme Court in Albany to stop the New York City Board of Elections from awarding a $70 million dollar contract for new voting machines to ES&S. If a temporary restraining order is granted, it would call into question the city’s ability to deploy new voting systems in the 2010 elections, a schedule already in jeopardy due to the City Board of Election’s long delay in selecting new systems. The competition between the two companies for the New York City contract was intense, and has raised questions of lobbyist influence, possible investigations, and even subpoenas.

In court papers, Dominion argues that the New York City Board of Elections failed to comply with New York State and New York City Procurement Laws, Rules and Regulations, and awarded the contract on the basis of illegal criteria. Further, the lawsuit argues that the New York City Board of Elections:

1) Did not conduct a lawful bidding and procurement process;

2) Did not disclose the method and criteria used in evaluating bidders;

3) Did not award the contract to the lowest responsible bidder.

The city used a point system to evaluate the two companies. In the final evaluation, ES&S received 3,417 points, while Dominion received 3,395, a difference of only 22 points. Dominion claims that the slightly higher overall score for ES&S in the city’s evaluation is due to extra points given to the ES&S DS200 scanners for an option called “Easy Startup”. This option is said to include electronic machines pre-programmed in the warehouse prior to delivery to poll sites, and the ability for poll workers to open the machines without a password (such a configuration is not only an obvious security risk, but disallowed under New York election law). The lawsuit claims that the State Board of Elections explicitly ruled that the DS200 Easy Startup option does not comply with state law, and informed the New York City Board that it would reject any contracts that included it.

It remains to be seen if what impact, if any, the suit will have on the city’s ability to deploy of new voting systems this year, a schedule already in jeopardy. And of course, if the State Supreme Court were to grant the restraining order, the reaction of Federal Judge Gary Sharpe to yet further delays in New York City’s HAVA implementation schedule will need to be reckoned with as well.

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