Contractual Liability in Election Technology Contracts: Key Commercial Considerations (Part 1)

One of the major issues that marred Nigeria's 2023 general elections was the failure of the INEC Result Viewing Portal (IReV) to publish presidential election results promptly, alongside operational difficulties associated with the Bimodal Voter Accreditation System (BVAS). IReV was introduced to promote transparency by allowing members of the public to view images of polling-unit result sheets. BVAS, on the other hand, was deployed primarily to authenticate voters biometrically and to capture and upload polling-unit result sheets.

It is not clear whether INEC pursued any contractual claims against any of its technology vendors. However, the failure of an election or hardware to perform raises an important question that extends beyond electoral administration. Thus, where a government engages a private company to supply election hardware, develop election software or operate the infrastructure supporting an election, what contractual remedies are available when the technology fails to perform as required? We discuss some commercial considerations below.

When Does an Election Technology Failure Become a Breach of Contract?

Generally, a malfunction does not automatically establish a breach of contract. The relevant question is whether the supplier failed to perform an obligation imposed by the contract, and whether that failure gives rise to a remedy under the applicable law. Contractual liability therefore depends on the allocation of risk and responsibility in the relevant contracts.

For instance, consider a government agency that contracts with a technology company to develop and deploy a platform capable of receiving and publishing millions of election result sheets within a specified period. Typically, the contract requires the system to undergo integration testing, load testing and security testing before deployment. If the system fails to publish results because the supplier did not configure the application to accommodate a nationwide presidential constituency or failed to allocate sufficient server bandwidth, the government may have grounds to investigate whether the supplier breached its performance obligations.

The outcome would typically depend on the contractual allocation of responsibility in the relevant contract. Was the supplier responsible for the overall system architecture and database configuration? Did the contract require the supplier to identify and correct such scaling defects? Had the government accepted the relevant design following pre-election simulation? Was the configuration error attributable to the supplier, the government's own technical team or another contractor handling network connectivity? These questions cannot be answered merely by establishing that the application failed.

The position is similar where BVAS devices malfunction during voter accreditation. If the supplier warranted that the devices would meet specified performance requirements under field conditions but they repeatedly failed during polling hours, the government might have a claim for breach of warranty or contract. Conversely, a failure caused by inadequate operational training provided by the government, an excluded telecommunications network outage or an unforeseen event may produce a different legal outcome.

The key legal distinction remains between a system that has merely malfunctioned and a supplier that has failed to fulfil an enforceable contractual obligation.

In our concluding part, we address some of key contractual mechanisms for allocating risk in election technology contracts.