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IBP asks SC to void Comelec-Smartmatic PCOS repair deal

The Integrated Bar of the Philippines (IBP) has asked the Supreme Court to void the agreement between the Commission on Elections and the Smartmatic-TIM for the refurbishment and repair of Precinct Count Optical Scan (PCOS) machines to be used in the 2016 elections.

In its 28-page petition, the IBP asked the high court to declare as null and void both Comelec Resolution No. 9922 and the signed contract between the poll body and Smartmatic for alleged violation of Republic Act 9184.

The IBP also wants the SC to issue a temporary restraining order against the Comelec resolution, upon filing of its petition, and a writ of preliminary injunction upon notice and hearing on the case.

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 PCOs maintenance and repair as it would be "too great a risk" to entrust the task to another company.

But in its petition, copies of which were obtained by the media Thursday, the IBP 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 Arricle 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.

"It is a hornbook doctrine in Constitutional Law that administrative agencies are without authority to limit the scope of the statute to less than what it provides, or extend or expand the statute beyond its terms, or any way modify explicit provisions of the law," it added.

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