Diebold's Letter to North Carolina SBOE
By Charles Owen, for Diebold Election Systems, Inc.
December 22, 2005
This letter was attached to a cover email dated December 23, 2005. A PDF of the orginal letter can be downloaded here.
December 20, 2005
Mr. Gary Bartlett
State Board of Elections
6400 Mail Service Center
Raleigh, NC 27699-6400
Re: North Carolina RFP ITS-002724 and Requirements Contained in Session Law 2005-323
In response to your memo dated December 19, 2005 regarding the
escrowing of all software for this project I am providing you the
following response to the current status of our efforts to move forward
with the subject RFP. As you know, DESI publicly stated in our
Complaint seeking a Declaratory Judgment that we could not escrow all
third-party software. Moreover, we believe that no vendor will be able
to comply with the requirements to identify all programmers responsible
for creating the third party software to be placed in escrow.
Those requirements impose harsh criminal and civil penalties for
non-compliance. As such DESI will be unable to enter into a contract to
sell voting equipment in North Carolina without a modification to
Session Law 2005-323. DESI’s RFP response explicitly stated that its
response was not an offer to contract, but rather an offer to negotiate
DESI is prepared to work closely with the North Carolina State Board of
Elections (“SBE”) in drafting a modification to Session Law 2005-323
that meets the true intent of the legislature while at the same time
imposing reasonable requirements on all vendors that are capable of
being met, and which will allow DESI to continue to support its loyal
customers in the State of North Carolina.
With respect to the deadlines addressed in your memorandum dated
December 9, 2005, and follow-up correspondence regarding the
performance bond and escrow requirements, DESI will be unable to comply
with the deadlines imposed by the SBE; DESI is unable to obtain a
performance bond from its Surety, since the Surety requires the
existence of a formally executed contract. Furthermore, pursuant to
Session Law 2005-323, the requirements for a performance bond and the
escrow of all software are not triggered until the vendor executes a
contract to sell voting equipment in North Carolina. As noted above
please be advised that DESI will not execute a contract to sell voting
equipment in North Carolina without the modification and subsequent
clarification of the requirements contained in Session Law 2005-323. As
we have previously made clear, our difficulty is nor with our software,
but with the software that is not owned or controlled by DESI. This
includes operating systems, drivers and myriad other pieces of code
that are present in any computer system. Further, we believe it is
impossible for any vendor of an election system to say that they have
access to all of the source code in question or that it is all in
On December 1, 2005, the SBE publicly announced that every vendor
certified faced issues with respect to the escrow of third-party
software. At that time, the SBE proposed a solution to the escrow
requirements for third-party software. However, after further analysis,
we believe the proposed solution is inconsistent with state law.
Moreover, the proposed solution fails to address the requirement
imposed on vendors to identify all programmers responsible for creating
the third party software to be placed in escrow.
Please contact us at your earliest convenience to discuss a legislative
or other solution to impractical requirements imposed upon vendors by
the current state law.
Charles R. Owen
Diebold Election Systems, Inc.
Cc: Dave Byrd
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