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Poll watchdog to SC: Reconsider legality of P1.8-B Comelec, Smarmatic deal

The Automated Election System (AES) Watch, led by former Vice President Teofisto Guingona, has asked the Supreme Court to reconsider its June 13 ruling upholding the legality of the P1.3-billion deal to purchase the vote counting machines for the 2013 elections.   The AES Watch insisted the Commission on Elections (Comelec) should not have been allowed to exercise its "option to purchase" the 82,000 precinct count optical scan (PCOS) machines beyond the Dec. 31, 2010 deadline.   Comelec could still exercise its option to purchase because the original contract was still valid and existing because the performance security bond posted by Smartmatic-TIM was not yet returned, the high court ruled.   The bond was in the form of a letter of credit worth P360 million or 5 percent of the original P7.2-billion poll automation contract for the May 2010 polls.   The bond was meant to fund penalties for non-performance or should machine provider Smartmatic-Total Information Management fail to deliver the equipment based on contract schedules.   But AES said it was clear from the contract that the option to purchase expired in December 2010.   "It does not take much analysis to understand the meaning of 'deadline,' until,' and 'on or before... ' Settled is the rule that if the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control," the petitioner said. A 'void contract'   In April 2011, Smartmatic-TIM offered a revised extended option to purchase, but its term sheet signed almost a month later was cancelled by Comelec in June last year.   AES Watch noted a Feb. 8, 2012 resolution of the Comelec Advisory Council reiterating its position to no longer exercise the poll body's option to purchase due to the glitches.   The petitioner also said the Supreme Court "erred" when it ruled that purchasing the PCOS machines would be advantageous to the public.   "It is hardly an advantage to the public when a government body such as COMELEC mulls over a dead option contract and, consequently, wastes valuable time and resources in the useless deliberation process," AES said.   The AES also insisted that an option contract extended without public bidding is a "void contract."   Instead of exercising its option to purchase, the Comelec should have used its "ample time" to "look into other providers as recommended by its Advisory Council," according to AES.   "The respondents can not... justify the March 30, 2012 Deed of Sale as an exercise of a dead option contract," the poll watchdog said.   “Neither can they justify the same under an extended option period because such extension, which even spans for more than a year from the original deadline, was not known and made available to the other bidders for the 2010 elections," it added. — VS, GMA News