MANHATTAN (CN) – Premier Election Solutions, formerly known as Diebold, claims it was defrauded by SysTest Labs, which claimed to be expert in testing electronic voting systems. Premier says SysTest’s work was so shoddy the federal Election Assistance Commission suspended SysTest’s accreditation a week before the 2008 presidential election, wreaking havoc with Premier’s business.
Premier claims SysTest, of Denver, violated a 2006 Master Professional Services Agreement for Voting Systems and defrauded it by failing to report honestly on SysTest’s continuing problems.
The Election Assistance Commission (EAC) was created by the federal Help America Vote Act of 2002 (HAVA). “HAVA mandated the creation of a federal election systems certification process, to be administered by EAC. The EAC has implemented a certification program, which provides a means to obtain federal certification for election systems used by state and local election officials.
“The EAC assumed federal responsibility for accrediting voting system test laboratories through the Voting System Test Laboratory Accreditation Program (the ‘VSTLA’ program). The purpose of the VSTLA Program is to provide for the accreditation and revocation of accreditation of independent, non-federal laboratories to test voting systems to federal standards.” (Parentheses in original complaint.)
Premier claims SysTest repeatedly touted its expertise, in presentations to Premier and to state governments, and in press releases. But it says SysTest had a history of problems with the EAC, which repeatedly warned SysTest about its substandard procedures.
On July 3, 2008, EAC wrote to SysTest, complaining of “a lack of cooperation by SysTest,” the complaint states, citing this alleged passage from the EAC letter: “throughout the course of these reviews and various iterations of test plans and test reports the EAC has repeatedly asked SysTest Labs to provide details of the specific tests being performed on the voting systems. Despite these requests, SysTest Labs has yet to provide the sufficient detail necessary to adequately evaluate the testing being performed.”
On July 25, EAC wrote to SysTest again, and referred to correspondence between SysTest and Election Systems and Software (ES&S), another provider of electronic voting machines. Premier claims that “EAC stated that it had ‘concerns,’ based on the correspondence between SysTest and ES&S that ‘SysTest is allowing and inviting manufacturers to play an inappropriate role in the development of test plans.’ EAC post four questions (which it called ‘interrogatories’) to SysTest on the subject.” SysTest responded on Aug. 4, “claiming that there were ‘no improprieties’ in the SysTest correspondence with ES&S, and that the words in its correspondence with ES&S were ‘taken out of context.’ SysTest offered no changes to its procedures to address the EAC concerns,” according to the complaint.
On Aug. 8, the director of the National Voluntary Laboratory Accreditation Program (NVLAP) and the National Institute of Standards and Testing (NIST) “wrote to SysTest, noting several failures in SysTest’s capacity to ‘demonstrate the ability to document and validate test methods,'” the complaint states.
The concerns prompted NVLAP to conduct a site review of SysTest on Oct. 14-16, with EAC and NIST observers present, the complaint states. On Oct. 28 – a week before the presidential election, “NIST wrote to SysTest, informing SysTest that NVLAP had decided to ‘suspend its accreditation of SysTest’s electronic voting testing program.” NIST noted the three concerns previously raised with SysTest, which were the reasons for NIST’s request for an on-site review of SysTest operations.”
The complaint then cites five paragraphs, attributed to the NIST report, on “serous concerns about SysTest’s performance of voting system testing.”
Excerpts include: “the test methods being used were not fully developed, validated, mapped to the requirement of the applicable standards, and controlled under SysTest’s document control policy … it was unclear who at SysTest had the ultimate responsibility for test method development … During the observed tests, it appeared that the testers were running the tests for the first time. … Basic tests, such as the system ready test, were not conducted successfully. … Some anomalies or potential problems during testing were not reported by the testers but were pointed out by members of the on-site team.” These citations are from the first two of five paragraphs.
NIST suspended SysTest’s accreditation on Oct. 28, throwing Premier into havoc, the complaint states. It says it had to hire a new company to test its machines, and its relationships “with election officials in more than 2,000 jurisdictions in 33 states” were affected. It claims that SysTest denied that its problems constituted a breach of their agreement, and says that SysTest did not assist it during or after this chaotic period.
Premier seeks punitive damages for fraud, fraudulent inducement, breach of contract, unjust enrichment, conversion and deception. It is represented in Federal Court by Steven Bennett with Jones Day.