Contractual Liability in Election Technology Contracts: Key Commercial Considerations

A government agency saddled with the conduct of elections is often required to enter into a number of contracts. Such contracts can include software development contracts, cloud services agreements, software licensing agreements, election management system agreements, systems integration agreements, hardware supply agreements, IT managed services agreements, and election technology implementation agreements. The specific contractual structure will depend on whether the supplier is developing the election software, supplying accreditation devices, hosting election data, integrating different systems, or providing technical support and maintenance. Across these contracts, key operational provisions must be carefully negotiated to ensure performance before polls open.

2.1. Detailed Technical Specifications and Performance Obligations

A well-drafted contract should identify the system's required functions, capacity, reliability and operating conditions. General obligations to supply a functional voting device or results portal are inadequate where the system must perform under demanding, time-sensitive conditions. For an electronic results platform, specifications might include the number of simultaneous users, the volume of result images that must be received and processed, the maximum permissible upload delay, system availability and recovery times. For biometric accreditation devices, the specifications should address the required functions, compatibility, operating conditions, battery performance, offline functionality, data integrity and applicable security requirements. The contract should also clearly identify which party is responsible for each component and for integrating those components into a functioning system.

2.2. Mandatory Pre-Deployment Testing and Simulated Exercises

A well-drafted contract should require the supplier to conduct and document appropriate testing before the system is accepted for operational use. This should include functional testing, integration testing, load and stress testing under peak national concurrency, cybersecurity assessments, recovery testing and mandatory simulated election-day exercises. A system that performs satisfactorily in a small off-season election may not necessarily perform adequately in a nationwide general election. The relevant test must therefore reproduce the reasonably anticipated operational demands of the actual deployment. A well-drafted contract should provide for independent verification by third-party auditors, require critical defects to be remedied before acceptance and prevent a supplier from treating physical delivery alone as proof of satisfactory performance.

2.3. Express Warranties and Tiered Defect Remedies

A well-drafted contract should make provision for express warranties by a supplier. These can include warranties that the equipment and software will conform to agreed specifications, perform stated functions, remain free from malicious code or unauthorized backdoors, and comply with applicable legal and technical requirements. The agreement should also: (a) specify the duration of the warranties, the procedure for notifying defects and the period within which the supplier must repair or replace defective equipment or software; and (b) distinguish between minor defects, which may be remedied within an agreed post-election period, and critical defects that disrupt an essential electoral function on or near Election Day.

Where a critical defect cannot be remedied within a tightly defined operational window, the government should have clearly defined rights to reject the affected deliverable, require immediate replacement, enforce pre-agreed backup mechanisms, terminate the relevant part of the contract or pursue alternative remedies.

2.4. Zero-Cure Operational Windows and Real-Time Service Commitments

While routine IT contracts provide standard 30-day cure periods for material breaches, such provisions are meaningless during an election cycle. In election technology, a four-hour outage on polling day can permanently compromise the credibility of an election. A well-drafted contract must therefore establish "Zero-Cure Operational Windows" surrounding Election Day, where any failure to meet performance baselines constitutes an immediate material breach without a cure period.

Furthermore, where a supplier operates or supports a live electoral platform, the contract should contain measurable service-level commitments addressing system availability, API response times, real-time support coverage, and incident resolution. While service credits are standard in commercial IT to compensate for minor operational failures, they should never be the government's exclusive remedy for major system failures affecting an election.

2.5. Responsibility for Subcontractors and Third-Party Dependencies

Election technology frequently depends on multiple parties. One company may manufacture the hardware, another may supply biometric software, another may operate the device-management platform, and another may provide cloud hosting. A well-drafted contract should identify these dependencies and determine which party bears ultimate responsibility for integrating and supporting the overall system.

Where the main contractor is responsible for delivering an end-to-end solution, the agreement should make clear that subcontracting does not relieve it of its agreed obligations. The government should also have appropriate approval, disclosure and audit rights concerning material subcontractors and critical third-party services. This avoids a situation where the prime contractor attributes a failure to a software licensor, the software licensor attributes it to the hosting provider, and the hosting provider denies responsibility for the application's configuration.

2.6. Carve-Outs, Liability Caps and Performance Guarantees

In standard commercial IT procurement, liability is routinely capped at the value of the contract (or a modest multiple thereof). In election procurement, this commercial model breaks down completely. The economic, social, and political losses resulting from a failed election, including the multi-billion-Naira cost of conducting a court-ordered rerun. To bridge this gap, government contracts must incorporate specialized risk-allocation mechanisms, including, on-demand performance bonds, carve-outs from liability caps, and liquidated damages.

Key Takeaways

1. Investigating contractual liability in the event of technology failures is fundamentally in the public interest, and serves as a vital mechanism to enforce accountability and protect democratic transparency.

2. The experience of Nigeria's 2023 general elections demonstrates why the procurement of election technology requires more than an agreement to supply devices or develop software. Where technology supports voter accreditation, results management and public access to polling-unit results, the relevant contract should establish measurable standards of performance, mandatory testing, express warranties, audit rights, clear responsibility for subcontractors and effective remedies for failure.

3. While the commercial objective is not to guarantee that technology will never malfunction, it is critical to ensure that foreseeable risks are addressed before deployment, failures can be independently investigated and the government has meaningful contractual remedies when a supplier does not perform as agreed