The Philadelphia Board of Elections will meet Thursday to consider voiding a contract for new election machines after it was learned that the company, Election Systems and Software (ES&S), did not disclose their use of lobbyists to get the contract.
In a letter sent to the board this week, City Solicitor Marcel Pratt asked that the board consider whether the $29 million contract with ES&S to provide new voting machines with voter-verifiable paper records should be voided.
The letter followed an investigation by the Philadelphia city controller that found ES&S failed to make certain mandatory disclosures when applying for the contract.
Those included not disclosing the use of lobbyists and consultants, the identities of these lobbying groups, and the amount paid to them by ES&S.
Marcel noted that if ES&S had made these disclosures, it would not have disqualified the company from consideration for the contract.
A spokesperson for ES&S told The Hill that the disclosures were “inadvertently omitted in our vendor application,” adding that this was “due to our mistaken interpretation of Philadelphia’s contracting process.”
“We sincerely regret the oversight and have taken every measure to correct the matter,” the spokesperson said.
According to Marcel, if the board does not void the contract, ES&S has agreed to pay 10 percent of the contract, or about $2.9 million, for its liability for not disclosing the information.
The city made the decision to obtain new voting machines after the Pennsylvania Department of State last year directed all counties to switch to voting machines that produced a paper record to increase election security.
The agency gave the counties until Dec. 31 to do so, but said it preferred the new systems to be in place for the general election on Nov. 5.
The Philadelphia Board of Elections, made up of three city commissioners, awarded the contract to ES&S in February, ordering the company’s ExpressVote XL machines.
According to a letter sent to the Board of Elections by Philadelphia Procurement Commissioner Monique Nesmith-Joyner, the city has already accepted delivery of 3,200 of these machines, and there have been about 150 public showings of the machines.
Nesmith-Joyner cautioned that should the board decide to void the contract it would make it difficult for the county to meet the December deadline for new machines.
“Restarting the procurement process at this time would make it impossible to acquire and roll-out new machines, schedule public demonstrations, and train election workers by the November 2019 election and unlikely to do so in time for the May 2020 presidential primary election,” Nesmith-Joyner wrote.
The original selection of ES&S, which is one of the largest voting equipment manufacturers in the U.S., was fraught with controversy.
According to the Philadelphia Inquirer, many citizens opposed awarding the contract to ES&S, citing the speed and secrecy involved in making the decision. The time between the request for proposals on the contract and the contract being awarded was three months.
Pennsylvania Auditor General Eugene DePasquale issued a statement in February noting that he had “serious concerns about the process” involved in the selection of ES&S, and said that he felt Philadelphia’s request for proposals for the contract was written to favor ES&S.
“Did anyone in Philadelphia city government fully vet the Request for Proposals process to make sure that security concerns and accessibility for voters with disabilities were given strong enough consideration?" DePasquale wrote. "Who wrote the request? Did anyone meet with a lobbyist? Did anyone get taken to dinner? Did anyone receive a donation or trip?"
“I understand the need to move quickly, but I don’t think there was a full accounting of the process,” he added.