1S-2.004: Voting Machine Equipment Regulation/Purchase, Use and Sale
PURPOSE AND EFFECT: The purpose of the proposed rule amendments is to update the provisions governing the local procurement of certified voting systems and equipment in the state. The proposed amendments also provide uniform procedures for supervisors of elections and governing bodies to follow in the use and assessment of certified voting systems and equipment throughout the state. Testing of voting systems is an important part of ensuring fair and accurate elections and test procedures are essential to maintaining the integrity of certified voting systems used in any election in Florida. The proposed amendments establish procedures for proper use of certified voting systems and a protocol for assessing a voting system during a routine test or system audit as well as opportunities to identify potential or actual problems that require immediate resolution and to assess potential vulnerabilities to the integrity of voting systems. The amendments also ensure transparency to the testing of these systems, including public notice, and a report of the results.
SUBJECT AREA TO BE ADDRESSED: Use and Assessment of Voting Systems.
SPECIFIC AUTHORITY: 20.10(3), 97.012(1) 101.293, 101.294 FS.
LAW IMPLEMENTED: 101.292, 101.2923, 101.294, 101.295, 101.5604 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
TIME AND DATE: June 12, 2006, 1:30 p.m.
PLACE: Florida Heritage Hall, R.A. Gray Building, 500 S. Bronough Street, Tallahassee, Florida
NOTICE UNDER THE AMERICANS WITH DISABILITIES ACT: Any person needing special accommodations to participate in this proposed rule development workshop should contact the Department of State at 1(850)245-6536 no later than three business days before the workshop. Any person who is hearing or speech impaired may contact the Department by using the Florida Relay Service with the following toll free numbers: 1(800)955-8770 (voice) or 1(800)955-8771.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Ms. Maria Matthews, Assistant General Counsel, Division of Elections, R.A. Gray Building, Tallahassee, Florida 32399; (850)245-6536; e-mail: mimatthews@dos.state.fl.us
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
1S-2.004 Procurement, Use and Assessment of Voting Equipment and Systems Voting Machine Equipment Regulation/Purchase, Use and .
(1) Purpose. This rule provides procedures for It is the purpose of the regulations and procedures set forth in this section to give effect to the provisions of Section 101.5601, F.S., relating to the purchase, sale, use and assessment sale of new and used voting machines and voting machine equipment, including electronic and electromechanical voting systems and equipment, by governing bodies of political subdivisions of the State of Florida. The standards and specifications outlined herein shall be applied in accordance with Section 101.5601, F.S., to:
(a) Promote efficiency, and economy and to effect the coordination in the purchase, sale, use and assessment sale of voting machines and attendant equipment and voting systems in the State;
(b) Provide a uniform policies and procedures for minimum requirements in the procurement of voting equipment and voting systems program of accepted minimum requirements:
(c) Provide for the maximum of competition on a basis of fair and equal opportunity to persons, companies and corporations interested in the sale and purchase of voting equipment and voting systems in the State;
(d) Promote cost-effective procurement of voting equipment and voting systems; and
(e)(d) Serve as a guide to supervisors of elections and governing bodies and as information to suppliers, by providing intended to portray good practices and procedures in governmental purchase, sale, and use and sale of voting equipment and voting systems.
(2) Definitions. The following words and terms used in these regulations and procedures outlined herein are intended to have the following meanings:
(a) “Division” means the Division of Elections of the Florida Department of State.
(b) “Governing body” as defined in Section 101.292, F.S., means the board of county commissioners of a county or any other governing body empowered by a general or special act or local ordinance to purchase, sell or use voting equipment the legislative branch of the political subdivisions of this State which are empowered by general or special laws, or local ordinance, to authorize the purchase and sale of voting equipment by that political subdivision.
(b) “Voting Equipment” means new or used voting machines and materials, parts, or other equipment necessary for the maintenance or improvement of voting machines, the individual retail value of which is in excess of 1,000 dollars, or the combined retail value of which is in excess of 1,000 dollars. Voting equipment shall also include electronic or electromechanical voting systems, marking devices, and automatic tabulating equipment as defined in the Electronic Voting Systems Act, as well as materials, parts or other equipment necessary for the operation and maintenance of such systems and devices
(c) “Purchase” means a contract for the purchase, lease, rental or other acquisition of voting equipment.
(d) “
(e) “Division” means the Division of Elections for the Florida Department of State.
(f) “Bid List” means a current list of sources of supply for each classification of voting equipment purchase or sale.
(g) “Responsible Bid” means an offer submitted by a responsible bidder in ink or typewritten form for the purchase or sale of voting equipment in conformity with the specifications, delivery, terms and conditions, and other requirements included in bid invitations.
(h) “Responsible Bidder” means one who submits a responsible bid, and who has furnished, when requested, information and data to prove his financial resources, production or service facilities, and one whose service reputation and experience are adequate to insure delivery on which he bids, and one who has not violated any, or attempted to violate any, provisions of the statutes or regulations of the Division.
(e) “Voting Equipment” as defined in Section 101.292, F.S., means electronic or electromechanical voting systems, voting devices, and automatic tabulating equipment as defined in Section 101.5603, F.S. It also includes materials, parts, or other equipment necessary for the operation and maintenance of such systems and devices
(f) “Voting System” as defined in Section 97.021, means a method of casting ballots and processing voters that functions wholly or partly by use of electromechnical or electronic apparatus of by use of marksense ballots and includes, but is not limited to, the procedures for casting and processing votes and the programs, operating manuals, supplies, printouts, and other software necessary for the system’s operation.
(i) “Regulations” means and includes the provisions herein.
(3) Bid Procedures and Regulations for /Purchase and
(a)1.Competitive Bids-, When Required – A governing body shall adhere to its established policies, practices, and rules for competitive bid procurement including procedures for protests to the extent not otherwise addressed by rule or state law for the No purchase or sale of voting equipment may be made when the total expenditure price thereof is in exceeds the $25,000 threshold amount in Section 287.017 for CATEGORY TWO purchases. excess of $1,000, unless made upon competitive sealed bids received. If and when the total expenditure exceeds $25,000 price is in excess of $1,000, the bid must be advertised in accordance with county publication requirements. no purchase or sale shall be made unless competitive sealed bids are received after advertising in a newspaper of general circulation one time at least 10 days prior to the date on which bids are to be received provided, however, that the governing body agrees by vote that an emergency situation exists in regard to the purchase of such equipment to the extent that the potential benefits derived from competitive bids is outweighed by the detrimental effects of a delay in the acquisition of such equipment or if a majority of the governing body finds that there is only a single source from which suitable equipment may be obtained, then the governing body may make the purchase and Tthe chairman of the such governing body shall certify to the Division of Elections within 10 days of approval of an exception by the governing body’s procedures for procurement and include the circumstances and conditions requiring an exception purchase to this subsection competitive bidding requirements of this section.
2. All bids, tabulations of bids, and responses related to bids or procurement shall be entered in a permanent record, maintained by the governing body, and made available for inspection upon request by the Division, the public or other interested person or entity.
(b) Notice of Competitive Bid for Purchase or Sale – The governing body shall provide notice the Division of Elections of all invitations to bid for the purchase or sale of new or used voting equipment whose total expenditure exceeds $25,000.00. (c) Vendor Lists Maintained –The Division shall maintain a list of vendors whose voting equipment is certified for purchase or sell by the respective governing bodies.
(d)(b) Content of Competitive Bid Data on Bid Furnished by Governing Body.
All bid invitations shall specify at a minimum, the following information: shall indicate what is or is not wanted, by what governing body, the quantity, delivery time requested, and the specification or other deion establishing the capability of such voting equipment, including compliance with the minimum requirement provisions of Section 101.5606, F.S. Also, included shall be any special conditions which bidders must meet.
1. Name and address of governing body.
2. Date of issuance.
3. Required time, place and terms of delivery and any other delivery conditions.
4. Date, hour and place of opening bids.
5. Surety requirements, if any.
6. Quantity of voting equipment to be furnished under each item.
7. Any specifications or other deion establishing the capability of such voting equipment.
8. The requirement that the voting equipment must be certified under the
9. Any special conditions that the bidder must meet.
10. A statement that the governing body reserves the right to reject any and all bids.
11. A statement that the bidder must indicate any cash discounts or terms of discounts provided if the bid is accepted.
12. The requirement that the bidder must include all costs for delivery, storage, freight and packing to the address on the bid invitation unless otherwise specified.
13. Any other general conditions or special provisions required by the governing body.
All bids shall be signed manually by a responsible officer of the company in ink or indelible pencil and returned to the governing body prior to the time and date set for the bid opening. Bids received after that time shall be returned to the sender unopened.
The following information and any other necessary shall be in all calls for bids:
1. Name and address of governing body.
2. Date of issuance.
3. Time, place and terms of delivery.
4. Date, hour and place of opening bids.
5. Surety requirements, if any.
6. Quantity of voting equipment to be furnished under each item.
7. Any other general conditions or special provisions.
(c) Prior Approval by Division of Elections – Prior approval of the Division of Elections is required for all calls for bids and purchases or sale of new or used voting equipment priced in excess of $1,000. Bid invitations for such purchases or sale of equipment by a governing body shall be prepared as outlined in paragraph (b) and forwarded to the Division. Upon receipt, the Division shall examine those invitations for compliance with the procedures and regulations stipulated herein. All approved invitations will be returned to the governing body for bid purposes or other appropriate action. Each person engaged in the business of selling new or used voting equipment shall register with the Secretary of State by supplying the name and address of the seller and the name of the person responsible for such sales in the State of
(d) Formal Bids – Purchases or sales which are valued in excess of $1,000 shall be based on competitive bids received. Bids on requirements which are $1,000 or less may be procured in any one of three methods: by telephone inquiries to bidders; by return mail inquiry; or by formal bid procedure. In any event, all bids, tabulations of bids, and quotations related to bids shall be entered in a permanent record and maintained by governing body for inspection by the public or other appropriate authority.
(e) Bids Lists Maintained – The Division shall maintain a list of vendors whose voting equipment is certified for purchase by the respective governing bodies. The bid list shall be forwarded to the governing body upon approval, by the Division, of the bid invitations. At least two vendors on the bid list shall be solicited.
(f) How to Submit Bids – Bids shall be filled out and executed by each bidder in accordance with the instructions contained in the call for bids. Bids shall be submitted to the purchasing authority by mail or by delivery . In each instance, the bid shall be in a sealed envelope clearly identified by bid number, time, date of opening, and name of bidder.
(h) Time of Submission – Bids shall be submitted in sufficient time to reach the designated office prior to the time set for the opening. Bids received after the time of the opening shall be returned to the bidder unopened.
(i) Modification or Withdrawal of Bids – Bids may be modified or withdrawn at any time prior to the date and time set for the opening thereof. After the opening of bids, no bid may be modified or withdrawn.
(j) Delivery and Receipt – Each bidder shall show the earliest date on which he can guarantee delivery or receipt of the items on which his bid is submitted. Where a specific date is required, the call for bids will so indicate. Except for this provision, all bidders shall bear in mind that early delivery or receipt is desirable.
(k) Opening Bids – All bids received prior to the time of opening shall be opened publicly and read aloud (if requested) at the time and place established in the call for bids. All interested persons may attend bid openings. All original bids shall be retained in the office of the governing body and made available for inspection if requested.
(l) Tie Bids – In case of exact tie bids the decision for award shall be made by the purchasing authority. In making this decision, consideration shall be given to the bidder’s past performance, reputation, time and potential service that can be rendered. All factors being equal, the decision may be made by drawing lots.
(m) Rejection of Bids – The right shall be reserved by the governing body to reject any and all bids and such reservation shall be indicated in all bid invitations and advertising. When bids are rejected and the projects or requirements are not abandoned, new bids may be called for. Bids which contain any alteration or erasure may be rejected. Otherwise, bids will be rejected only for good and sufficient cause, such as faulty specifications, abandonment of requirement, insufficient funds or other irregularities.
(n) Award of Contracts –All awards of purchases and sales for which competitive bids are received shall be made to the lowest responsible bidder in the case of purchases, and to the highest responsible bidder in the case of sales, taking into consideration quality, probability of performance and any other factors consistent with good business practices. In analyzing purchasing bids, officials must exercise careful judgment to insure that quality, performance, merit, utility and value are at least equal to that specified in the call for bids. Award of contracts shall be made with reasonable promptness by due notice to the bidder whose bid is deemed to be the best bid price, performance and other factors considered. Award shall be a properly executed written document.
(o) Purchase or Sale Order; A Contract – The issuance by a governing body of a purchase or sale order or other written notice to a bidder regarding any or all of the items for which bids are submitted shall be a contract of purchase or sale as to the voting equipment at the prices, terms and conditions specified therein.
(p) Recording or Tabulation of Bids – The names of the bidders, the prices quoted and such other pertinent data as necessary will be entered on tabulation and attached to the bids when filed by the governing body and shall be made available for inspection by any interested party.
(q) Bids Prepared to Location –All bids received from bidders by a governing body for voting equipment shall include all costs for delivery, storage, freight and packing to the address on the bid invitation unless otherwise specified. Bid invitations shall clearly state delivery conditions.
(e) (r) Deliveries. – All deliveries shall be made to the point or points specified in the invitation to bid call for bids and in all instances, charges therefor shall be prepaid to the location of the governing body, except when expressly otherwise provided for in the purchase order and/or bid. All deliveries of purchased equipment shall be subject to inspection at time of delivery and require written certification by the vendor of proper delivery. Voting equipment that fails in any respect to meet specifications, or not in satisfactory condition when received by the governing body, may be subject to rejection by it.
(f)(s) Notice of Rejection. – A governing body that receives any voting equipment that fails in any respect to meet the standards for certification under state law, that fails to meet the specifications upon which the award was based or representations of the vendor, or that is defective may be rejected. Notice of any rejection, based on defects that would be disclosed at the time of delivery or by ordinary methods of inspection, will be given to the supplier and the carrier within a reasonable time after delivery of the item(s). Notice of latent defects that which would make the items unfit for the purpose intended may be given by the governing body any time after acceptance.
(g)(t) Exceptions – Should any conditions arise wherein an exception to this subsection the regulations is required, then the governing body shall forward a certification stating the conditions and circumstances along with the complete file to the Division for its review and approval.
(3) Certification and Notice of Use of Voting Equipment and Voting System.
(a) Prior to the procurement of any voting equipment or voting system, each governing body shall certify in writing to the Division that the equipment or system shall be used for the purpose intended, that the equipment or system meets the requirements for certification under state law and rules, and that the equipment or system satisfies all other requirements under federal and state law. Prior to the subsequent sale of any voting equipment or voting system by a governing body, each governing body shall certify in writing to the Division the anticipated terms of the sale and the fact that such sale will not adversely affect the ability of the supervisor of elections or the governing body to comply with or otherwise perform its duties under state and federal law as pertains to elections.
(b) A supervisor of elections or the governing body shall notify the Division when he or she receives any voting equipment or voting system that fails in any respect to meet the standards for certification under state law or that fails to meet the specifications upon which a contract, agreement or other written representation was based.
(5) Procedures for Use of Voting System.
(a) Routine use. A voting system shall not use equipment or software not specifically enumerated within the voting system’s certification or the configuration defined within the voting system’s documentation. Critical elements of the voting system may be replicated to serve as a backup system. Critical elements include the software and database modules that comprise the election management system. Commercial-off-the-shelf (COTS) items may be replaced with like-kind items upon written concurrence from the voting system vendor and the Division.
(b) Improvement to the election process. A voting system may be used in any manner approved by the vendor in an effort to improve the election process. However, any deviation from the documented procedures or manual for use and operation of the voting system must be approved and documented by the vendor and must be approved in writing by the Division. Such documentation may be in the form of “user notes,” “technical bulletins,” or other suitable format.
(c) Training and educational purposes. A voting system may be used for training or educational purposes, provided security procedures include sufficient safeguards to protect the database(s) and software from inadvertent or intentional corruption. A backup of the voting system software and data must be performed prior to the conduct of any training or educational demonstration or practice on that system. Alternatively, a secondary backup system may be used for training or education. The training and educational procedures must ensure that the training or educational material and election data are segregated from official election material and data. Any training or educational session or program must occur sufficiently in advance so as not to interfere with or comprise the preparations of the voting system for use in an upcoming scheduled election.
(6) Procedures for Assessments of Voting Systems.
(a)1. The supervisor of elections on his or her own, or upon the direction of the governing body, may conduct an assessment of a voting system for the purpose of examining or evaluating security procedures, access control, system reliability and accuracy. This assessment may be conducted as a routine test or a test on the basis of paragraph (2), a system audit or an examination of the functionality of the software and firmware and may include penetration testing. The supervisor of elections is responsible for the conduct of these assessments but may use the services of an independent professional person or entity approved in writing by the Division. The professional person or entity must possess one or more relevant certifications from either the American Software Testing Qualifications Board (ASTQB), the American Society for Quality (ASQ) or from EC-Council.
2. A supervisor of elections may also conduct or order an assessment based upon any potential or actual deficiency, problem, vulnerability or flaw identified or detected in a certified voting system that relates to its hardware, software, design, operation, vote tabulation, access control, system reliability and accuracy, or security including the potential for unauthorized manipulation and fraud. Any potential or actual deficiency, problem, vulnerability or flaw that is identified or detected must be reported in writing to the Division of Elections and the affected vendor(s) no later than 10 days of its identification or detection.
(b) The following procedures apply to an assessment of a voting system under this subsection: 1. The supervisor of elections shall provide written notice to the Division of Elections of its intent to conduct an assessment. A test plan must be submitted to the Division of Elections for approval before an assessment is conducted. The test plan must include at a minimum, provisions for protecting the vendor(s)’ intellectual property and confidential and exempt information, whether the voting equipment or voting system will be altered or an attempt made to alter such equipment or system during the assessment, ensuring that all terms of the license and maintenance agreements will be maintained during such scheduled assessment.
2. Upon approval, the supervisor of elections may not schedule the assessment of the voting system any earlier than 21 days from the date the Division approves the test plan.
3. The supervisor of elections shall provide notice of the scheduled assessment and opportunity to attend to the following persons or entities: the Division, the vendor(s) of the certified voting system or equipment components affected by the test or assessment, other supervisor of elections who have similar voting systems in operation in their county, and the governing body. Notice to the public shall also be posted continuously at least 2 weeks in advance of the assessment on the respective supervisor of elections’ webpage and published for two consecutive weeks in a newspaper of general circulation in advance of a scheduled assessment.
4. The Division of Elections has the right to be present or to have access, pursuant to Section 101.58, to all premises, records, and equipment and staff of the supervisor of elections during the assessment.
5. The assessment of the voting system shall be conducted in public and on location, if practicable, in the county of the respective supervisor of elections.
6. The assessment shall be conducted in a manner that protects the disclosure of intellectual property and other information and documentation protected under the public records law.
7. A duplicate or backup voting system in lieu of a live system shall be used in any assessment whenever practicable.
8. The supervisor of elections shall ensure that the process and results of the assessment are documented and submit a written report to the Division no later than 20 days from the completion of the assessment with copies of the report provided to the vendor(s) affected by the assessment. The test report shall include any recommendations for addressing any identified potential or actual deficiency, problem, vulnerability, or flaw. The test report shall also flag all information that is confidential and exempt under the public records law in a separate addendum to the report.
9. The vendor(s) of the voting system or voting equipment component affected by the assessment may submit a written response to the report. A vendor’s response must be provided to the supervisor of elections and the governing body, with a copy to the Division, no later than 10 days from the date of receipt of the report.
10. The supervisor of elections shall develop and implement security procedures to mitigate any adverse effect resulting from a deficiency, problem, flaw or vulnerability identified by the assessment report. These procedures shall remain in place until such time as procedures are permanently implemented pursuant to section 101.015(4) or changes, if warranted, to the voting systems have been made by the vendor(s) and certified by the Division. The Division may also issue technical advisories to the supervisors of elections and the governing bodies relating to the results of any such assessment.
Specific Authority 20.10(3), 97.012(1), 101.293, 101.294, FS. Law Implemented 101.292, 101.293, 101.294, 101.295, 101.5604, FS. History–New 12-20-73, Amended 1-19-74, Repromulgated 1-1-75, Amended 5-20-76, Formerly 1C-7.04, Amended 7-7-86, Formerly 1C-7.004, Amended________.