Stupid ‘oul Pencils

Significantly, almost the first of Bertie Ahern’s issues, raised by him after the election, was the use of e-voting machines. The title of this posting is a quote from him, condemning the alternative traditional paper system.

Suffice to say that there are many people who disagree with him as can be seen HERE and HERE. They say that the purchase of the e-voting system was a waste of taxpayers’ money and, so far, a complete loss of that money and consequential expenditure.

The current estimate of the loss for which his Government is allegedly responsible is between €50 and €60 million and growing.

As far as can be judged, he seems to intend to try to spend his way out of the problem.

But is there another route?

Possibly.

For example, two companies are maintaining the London Underground. One, Metronet, is heading for a £1 billion overspend with insolvency looming; the other, Tube Lines, is, apparently, on budget.

Even if Metronet goes bust London Underground is adamant it will not change the contract with Metronet. Under the PPP contract there is an arbiter to decide conflict issues between Metronet and London Underground

Contracts of this kind are complex arrangements involving legal principles and take account of changing factual or economic circumstances.

So, what of Ireland’s e—voting machines? Do we know what was in the contract for the sale and supply of the machines (and the software)? No, we do not. Most if not all such contracts are not available under Freedom of Information (FOI) legislation due to “commercial sesitivityâ€?.

This category of exception under FOI can conceal failures to properly express the relationship between the parties. NEDAP supplied the machines to the Irish Government. In terms of knowledge and experience it is superior to the Government. Did the contract reflect that?

Did the Government have the services of an IT consultant as it negotiated the NEDAP contract?

In Stephenson Blake (Holdings) Ltd. v Streets Heaver Ltd. [2001]Lloyd’s Rep P.N. 44, QBD (OR) the UK court set out the obligations of a consultant on such a contract; the consultant must advise if the client’s perceived needs correspond to its actual needs; the consultant must advise if the client’s needs will be met by the IT system; the consultant must advise if the client’s staff and the consultant’s staff are capable of completing the project and finally, whether the client’s budget is and will be sufficient to meet the client’s objectives.

In St. Albans City and District Council v International Computers Ltd. [1995] F.S.R. 686, QBD; [1997] F.S.R. 251, CA the UK court decided an IT supplier must inform the customer exactly what the supplied system will do for the client; inform the customer exactly what the supplied system will not do for the client; and clarify the consequences for the client of the system not doing the things it will not do.

What Bertie Ahern ought to do is to have a review of the contract with NEDAP. That review should seek to identify what the express and implied terms of the contract with NEDAP are; it should check to see if, in the light of that review, NEDAP is in breach of the terms of supply or, if a consultancy was involved whether the consultant was in breach of its express and implied terms.

Given the substantial sums involved the taxpayer is entitled to nothing less.