BAGUIO CITY, Philippines – The Supreme Court (SC) nullified yesterday the P268.8-million deal between the Commission on Elections (Comelec) and technology provider Smartmatic-Total Information Management.
With the ruling, the Comelec will have to start from scratch in its preparations for the May 2016 general elections.
In a full court session here, SC justices unanimously voted to nullify the Comelec’s extended warranty contract with Smartmatic, awarded without public bidding, for the diagnostics and repair of 80,000 precinct count optical scan (PCOS) machines.
The magistrates granted the consolidated petitions filed by poll watchdog Automated Elections System (AES) Watch led by Manila Auxilliary Bishop Broderick Pabillo and the Integrated Bar of the Philippines (IBP).
They agreed with the petitioners that the poll body committed grave abuse of discretion in approving the deal, which was signed by Sixto Brillantes Jr. just days before he retired in February.
The SC justices said the Comelec failed to justify why it resorted to direct contracting method instead of conducting a public bidding under Republic Act 9184 or the Government Procurement Reform Act.
The SC ruled that the extended warranty contract, approved by the Comelec through Resolution No. 9922, was a circumvention of the procurement law.
“All amounts paid to Smartmatic, if any, being public funds, should be returned to the government,” SC spokesman Theodore Te said.
Te said the SC ruling is immediately executory, considering the time left for the Comelec to prepare for the 2016 national elections.
Comelec’s Resolution No. 9922 provided for the diagnostics, repair and refurbishment of the same PCOS machines used in the 2010 and 2013 polls.
Last month, the SC issued a temporary restraining order (TRO) stopping the implementation of the Smartmatic deal.
In their consolidated petitions, AES and IBP argued that the awarding of contract to Smartmatic was in violation of RA 9184 since the Comelec did not conduct a public bidding.
The petitioners said that the repair of the PCOS machines falls under the definition of the term “procurement” under RA 9184 and that direct contracting method chosen by the poll body was not justified under the law.
In opting to approve Smartmatic’s proposal instead of conducting a public bidding, the Comelec cited “tight time schedule” in its preparations for the May 2016 general elections.
The poll body added that it would be “too great a risk” to award the contract to a company other than Smartmatic, considering the highly technical nature of the refurbishment and repair of PCOS machines.
But the petitioners said that lack of time in preparing for next year’s polls is not a ground to dispense with the conduct of a public bidding under the law.
Following the SC decision, Comelec spokesman James Jimenez said they are looking into other possible options in 2016.
“When the SC issued the TRO, we have prepared other options… We just have to decide which options we will implement,” Jimenez said.
He said the poll body would wait for a copy of the SC ruling before deciding whether or not to file a motion for reconsideration.
Jimenez, however, said they are ready to comply with the SC order.
Smartmatic to appeal SC ruling
Smartmatic said it would file a motion for reconsideration before the SC after it scrapped its extended warranty contract with the Comelec.
“We find it significant that the Honorable Court is of the opinion that direct contracting, as a manner of procurement, is not intrinsically unconstitutional. The court merely takes issues with procedural matters, which we are confident the procuring entity, Comelec, can easily remedy,” Smartmatic president for Asia Pacific Cesar Flores said.
Flores maintained that the contract for the diagnostics and repair of the PCOS machines is valid and advantageous to the government.
“As the manufacturer of the PCOS machines and the legitimate source of original spare parts, Smartmatic is the rightful and capable entity in ensuring that these voting machines are in the best possible condition for next year’s elections,” he said. – With Sheila Crisostomo