SC voids Comelec deal for PCOS repair, diagnostics

(Updated 5:32 p.m.) BAGUIO CITY — The Supreme Court on Tuesday voided an agreement between the Commission on Elections and Smartmatic-TIM for the P300-million diagnostics and repair of the 80,000 Precinct Count Optical Scan (PCOS) for the 2016 polls.

This was after the high tribunal, in its summer session, granted the consolidated petitions filed by the Automated Elections System and the Integrated Bar of the Philippines against the Comelec-Smartmatic deal.

"The petitions are granted. Comelec Resolution 9922 and the Extended Warranty Contract Program 1 are declared null and void," said SC spokesman Theodore Te in a briefing.

The SC said the Comelec "failed to justify its resort to direct contracting."

Te said the SC decision was "immediately executory."

More than enough time

The Comelec, meanwhile, said preparations for the 2016 local and national elections will not be hampered by the Supreme Court ruling.

“We are able to adjust our timeline to take that into consideration,” said Comelec spokesperson James Jimenez, referring to the Supreme Court ruling. “Sa tingin namin, we still have enough time to prepare for the elections. I think more than enough time.”

The Comelec resolution approved Smartmatic's P300-million "Extended Warranty Proposal (Program 1)" through direct contracting. Under it, the private firm will examine the 80,000 machines for refurbishment, conduct full diagnostic of the machines, and perform maintenance minor repairs.

Citing a "tight time schedule" in the preparations for next year's elections, the Comelec said it decided to do away with public bidding and directly contract Smartmatic in the maintenance and repair of the PCOS machines as it would be "too great a risk" to entrust the task to another company.

Petitions vs. deal

A group of petitioners led by Bishop Broderick S. Pabillo said the poll body committed grave abuse of discretion when it issued Resolution 9922, which would set in motion "Program 1" of Smartmatic's extended warranty proposal, amounting to P300 million.

In its petition, the group claimed the Comelec ruling violated the Government Procurement Reform Act and the Commonwealth Act No. 128.

Pabillo's group added that the Comelec resolution was "not only anomalous but also scandalous because we feel the policy of a public and competitive bidding and transparency requirements of fundamental law was cast aside."  

He said he noticed how the Comelec seemed to be "rushing" to tap Smartmatic in conducting diagnostics and repair of the counting machines.

For its part, the IBP, in a separate petition, said with the absence of a competitive public bidding, the contract is considered contrary to public policy and should be struck down as "void and inexistent," under Article 1409 of the Philippine Civil Code.

The IBP also noted several SC rulings that held that competitive bidding in government procurement is a matter of public policy.

It said by issuing the contested resolution, the Comelec effectively amended Section 50 of RA 9184 or the Government Procurement Reform Act when it added "tight time schedule" to the three exclusively listed condition for resorting to direct contracting.

The group said Comelec's "tight time schedule" argument to justify resorting to direct contracting "is nothing but a superficial and shallow excuse."

"This is a blatant encroachment on the prerogative of legislature in enacting and amending laws," the IBP said in its petition.

The IBP said the Comelec's reference to possible time constraints when it preferred direct contracting over public bidding was "at best, purely speculative."

It further said there could be a suitable substitute to Smartmatic in refurbishing and repairing the counting machines that would offer "more advantageous terms to the government."

The group said the Comelec failed to prove that the diagnostics and repair of the PCOS machines are protected by trade secrets, patents and copyrights owned solely by Smartmatic. —KBK, GMA News