Again and again

On the eve of Pope Francis’ apostolic trip to the Philippines, various groups led by the Citizens for Clean and Credible Elections (C3E) and Automated Election Watch (AES Watch) had asked the Pope for prayers to “guide officials of the Commission on Elections in conducting the polls free of outside influence and corruption.”

They then submitted a joint protest letter to the Comelec to rescind what they had unduly described as a “midnight deal,” in reference to the P300-million diagnostic contract awarded in December to Smartmatic.

They insisted that the Comelec defer the award of the contract until after the February retirement of Comelec chairman Sixto Brillantes Jr. and commissioners Elias Yusoph and Lucenito Tagle, and for these three outgoing executives to inhibit themselves from “any long-term decision-making,” out of a sense of propriety and delicadeza” and in deference to the incoming chairman and commissioners.

What’s new?

According to observers, these groups have been demonizing Smartmatic’s AES/PCOS technology for the past six years simply because they want the Comelec to buy instead their rival technology called the Open Election System (OES) for P4-to P5-billion.

These observers say that Comelec was correct in throwing out OES in 2009 because its adoption would violate Republic Act. No. 8436  or the Automated Election Law, which mandated the full computerization of Philippine elections beginning in 2010.

They added that the commission also did right in simply adopting Smartmatic’s extended warranty because its law department actually ruled last year that there was no legal impediment to extending this warranty instead of awarding the diagnostic and repair contract for the 82,000 PCOS units to the company that wins in a public bidding.

It was logical for Comelec to award the contract by direct negotiations to Smartmatic because it was the supplier anyway of both the PCOS hardware and AES software.

Why entrust such a crucial job to another service provider which would be checking on the machines for the first time only when it bags the contract?

 In fact, Comelec could expose itself to a protracted court battle that would put 2016 poll preparations in jeopardy had it opted to award the contract via public bidding. This is because Smartmatic enjoys exclusive rights over the AES/PCOS technology. 

Given the recent resolution of its legal dispute in the United States with its software partner Dominion Voting Systems of Canada, Smartmatic has secured a new licensing agreement giving it “perpetual access” to Dominion’s technology.

Had Comelec awarded the contract to another company, it could be sued by Smartmatic because the winning bidder, other than itself, could only diagnose and fix the 82,000 PCOS machines by reverse engineering, which is considered an illegal act.

Given the way public or competitive auctions run their course in the country, staging a bidding for the diagnostic contract in lieu of a negotiated one would have taken Comelec up to April 2016 to complete—a terribly delayed timeframe that would certainly undermine preparations for next year’s balloting.

Hence, the three commissioners’ retirement was just a coincidence.

The Comelec could encounter extreme difficulty replicating, if not surpassing, next year the successes of the 2010 and 2013 elections were it to award the set of contracts for the repair and upgrade of the vote-counting units along with the supply of 23,000 more Optical Mark Reader (OMR) machines similar to PCOS to a service provider with zero or questionable track record in handling computerized elections elsewhere in the world.

Contrary to the misperception that the sham activists have foisted upon the public, the Comelec did not award the entire P1.2 billion diagnostic, repair and refurbishment contract to Smartmatic. What the agency has awarded, thus far, was the P300 million contract for the diagnostic work. The repair, upgrade and maintenance tasks would be covered by a separate P900-million contracts that Comelec plans, for now, to bid out soon.

Chairman Brillantes, no less, had pointed out that it was only logical for his agency to award the diagnostic contract to Smartmatic, considering that it was the source of these 82,000 PCOS machines. 

Smartmatic-Asia Pacific president Cesar Flores had similarly brushed aside the critics’ charges and asserted that there was no legal impediment in the Comelec’s decision to hire Smartmatic to do the diagnostic work on the PCOS machines that it leased to the agency in 2010 and then sold to it in 2013.

In a statement, Flores said the company’s contracts with the Comelec “have been twice upheld as legal and binding” by the Supreme Court (SC), and that these critics have not substantiated their accusations against Smartmatic in connection with its PCOS hardware and AES software in both the 2010 and 2013 polls.

Before the Comelec’s decision to award the contract to its private partner, Smartmatic-Total Information Management Corp. (TIM) legal counsel Ruby Yusi told reporters that the company could sue the Comelec should it decide to award the repair job to another firm via public bidding.

 In case the contract was given to another service provider, Yusi said this other company would have to resort to “reverse engineering” to repair the machines, an act “which can be considered illegal.”

 She also pointed out that Comelec could be held liable for breach of intellectual property clauses stipulated in their option to purchase contract in 2013, noting that the P1.8 billion paid by the Comelec that year to purchase the machines from Smartmatic covered only the units themselves, and not the entire technology.

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