SC seeks Comelec, Smartmatic side on IBP plea vs. PCOS repair deal

The Supreme Court on Tuesday asked the Commission on Elections (Comelec) to comment on a petition seeking to void its deal with Smartmatic-TIM for the refurbishment and repair of the vote-counting machines that will be used in the 2016 elections.

In an en banc session, the SC gave the Comelec and Smartmatic 10 days from receipt of the notice to comment on the petition filed by the Integrated Bar of the Philippines (IBP).

The IBP petition seeks 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 court, however, did not grant the IBP's request for a temporary restraining order.

Comelec Resolution No. 9922 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 Precinct Count Optical Scan (PCOS) 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 28-page petition last week, the IBP said that 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 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 its decision to resort to direct contracting "is nothing but a superficial and shallow excuse."

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 that 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