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SC junks plea to stop Smartmatic from supplying CF cards for May polls

(Updated 2:12 p.m.) The Supreme Court has dismissed a petition to stop the Commission on Elections (Comelec) from awarding a contract to Smartmatic-TIM to supply compact flash (CF) cards for the May 2013 automated elections.
In a full court resolution, the high tribunal said it has no jurisdiction over the petition of LDLA Marketing - a losing bidder for the supply of CF cards - which alleged that the Comelec committed "grave abuse of discretion amounting to lack or excess of jurisdiction" when it issued Comelec Resolution No. 9600 on December 27, 2012.  
"Petitioner LDLA did not avail of the remedies provided by the law and under existing jurisprudence, the court is without jurisdiction to hear the petition because 'compliance with the mandatory protest mechanisms of the law is jurisdictional in character,'" according to a summary released by the Supreme Court Public Information Office. Comelec chairman Sixto Brillantes Jr. welcomed the decision, saying "it now clarifies the process that you cannot just go to the courts without asking first for a reconsideration before the bids and awards committee (BAC) and then (Comelec) en banc for final ruling.” “Ini-skip nila lahat ito kasi. Dumeretso agad sila sa SC. Ngayon maganda 'yun dahil ang daming natatalo na nanggugulo,” Brillantes told reporters.
In its 13-page petition for certiorari, mandamus and prohibition filed last January 17, LDLA Marketing alleged that Comelec violated Section 53.1.5 of the Revised Implementing Rules and Regulations (IRR) of Republic Act 9184 or the Government Procurement Reform Act, which requires the poll body to select a winning bidder "on the basis of such best and final act."  
"Smartmatic should have been disqualified in the negotiated procurement taking into consideration that its bid exceeded the Approved Budget for the Contract of P46,584,384.00," the petitioner said.
Smartmatic's initial best and final offer to supply the CF cards-Main for the May 2013 elections was P50.9 million, or about P4.3 million above the approved budget. LDLA Marketing, meanwhile, had the lowest bid at P33.5 million.
"Oddly enough, and after having submitted its best and final offer, Respondent Smartmatic managed to submit a second bid, at P45 million, contrary to all known rules on public bidding," LDLA said.  
The petitioner insisted that while Smartmatic's second bid was already below the approved budget, it was still not the "most advantageous price for the government not being the lowest calculated bid."
But the high court said that before bringing its complaint to the SC, the LDLA should have first filed a motion for reconsideration with the poll body's Bids and Awards Committee. In case its appeal is denied, the firm should then file a protest with the Head of the Procuring Entity (HoPE) or Comelec Chairman Sixto Brillantes Jr. or the Comelec en banc.
"It is only after the HoPE has resolved the protest that the bidder may resort to the regular courts under section 58 of RA 9184," the court summary indicated. 'Erroneous'
The SC en banc said it was "erroneous" for LLDA to assume that the protest mechanism in RA 9184 and its IRR does not apply since it was already decided by Comelec to award the contract to Smartmatic-TIM.
"The approval of a recommendation of an award is distinct from the resolution of a protest," it added.
The chief of Comelec's SBAC had already maintained that the poll body provided a competitive bidding not only for the CF cards but for all services in the 2013 elections.
“We are laboriously going through all this procurement stages… It’s a really difficult task. Tiniyaga namin isa-isa ‘yan because we want to maximize competition,” SBAC chairperson Helen Aguila-Flores had said.
SBAC secretariat head Maria Victoria Dulcero said they wouldn’t have opened the supply and delivery of CF cards for bidding if they intended to award it to Smartmatic in the first place.
LDLA criticized the Comelec for its "flimsy" explanation that the firm was disqualified because members of the poll body's SBAC "found it difficult to eject Petitioner's CF cards."
The petitioner said difficulty in ejecting the CF cards could actually be beneficial to the government.
"The main purpose of the CF cards is to completely store valuable information processed by the PCOS machines and keep its integrity. Difficulty in ejecting the CF cards should be the least of Comelec's worries. In fact, this could be more beneficial as it would be difficult for persons with intentions to cheat to just switch pre-programmed CF cards," it said.
During one of the two testings of CF cards for the short-listing of suppliers, LDLA's CF Cards Main were found to be compliant with Comelec's technical requirement, but its CF Cards Worm failed to work in Smartmatic's PCOS machine.
In its defense, LDLA said the CF Cards Worm didn't work because "Smartmatic refused and up to this time continues to refuse to declare the technical requirements of the CF worm cards of the PCOS, claiming it to be proprietary information to the extreme prejudice of Petitioner and the government."
PCOS machines to be used in the May 2013 elections use two kinds of CF cards, the CF Cards Main and the CF Cards Worm, which can only be used if configured to the technical requirements of all the machines, which Smartmatic itself programmed and which Smartmatic claims to be "proprietary."
"Smartmatic cannot state that the CF cards worm are proprietary for the simple reason that the PCOS machines were already purchased by Respondent Comelec," the petitioner said.
"Admittedly, the software program installed in the PCOS machines may be considered proprietary but not the use of CF cards worm for the PCOS machines just like any external storage devices that can accept any CF card," it added.
LDLA also said it was confident that its CF cards would eventually work in Smartmatic's PCOS machines, as proven in the May 2010 automated polls, in which Smartmatic used CF cards supplied by LDLA.
LDLA twice tried bidding to supply CF cards for the May 2013 polls but was disqualified for submitting an un-notarized list of past projects in the first bidding and for alleged financial incapability in the second bidding.
Smartmatic did not participate in these past two biddings for the CF cards. The two failed bidding forced the Comelec to resort to the negotiated procurement, which LDLA is contesting in its petition before the high court.
The LDLA asked the court to issue a temporary restraining order and/or a writ of preliminary injunction against Comelec and Smartmatic to require them to maintain and observe the status quo prevailing before the promulgation of Comelec Resolution No. 9600 and enjoin its implementation as well. — with Amita O. Legaspi/RSJ/KBK, GMA News