Comelec, consortium appeal to SC on automated polls

Arguing that they acted in good faith, the Commission on Elections (Comelec) and the Mega Pacific Consortium (MPC) that won the P1.3-billion poll automation contract separately asked the Supreme Court (SC) yesterday to reverse its Jan. 13 ruling voiding the deal.

In filing their separate motions for reconsideration, officials of the Comelec and MPC defended their positions on the poll automation contract, saying they performed their duties lawfully under the deal.

In its 71-page appeal, the Comelec came to the defense of the MPC, saying it proved its eligibility as a contractor by delivering all the counting machines required under the bidding — a move that could be considered an advantage to the government.

"Only a reversal of the decision will repair the assailed integrity of the electoral body and its members who have been unkindly and unnecessarily maligned by the High Court, albeit unwittingly – and stop the fall of confidence reposed on them by the people," the Comelec said.

If there is a need to review the provisions of the poll automation contract, the Comelec said this should be done by a lower court since this involves factual issues outside the jurisdiction of the high tribunal.

"Grave injustice would result in public respondents if the decision is sustained. The Supreme Court has made it plain in the decision that their findings of grave abuse of discretion could lead to criminal prosecution," the Comelec said.

Comelec officials are facing possible criminal actions over the nullification of the contract, which the SC pointed out was made under an irregular bidding process.

"Public respondents may be agents of the State but they are also persons entitled to rights of due process accorded to ordinary citizens," the Comelec said.

The poll body appealed that if the Jan. 13 decision is sustained, the findings of grave abuse of discretion on the part of Comelec could lead to criminal prosecution of all its officials.

Comelec officials said it would be "grossly unfair" to expose them to possible criminal prosecution, pointing out that they cannot present evidence for their defense before the SC since the high tribunal is not an arbiter on factual issues.

In Defense Of The Contract

Comelec defended its poll automation contract with MPC, claiming the automatic counting machines (ACMs) have passed all the technical tests and denying the findings by SC that it flunked the Department of Science and Technology (DOST) tests.

They said the alleged flaws discovered by the SC in the computer software can be corrected simply by reprogramming it.

The poll body also stressed the award of the contract to MPC meant significant savings to the government amounting to billions of pesos.

Tests on the machines of other bidders also showed those of the MPC were better and faster, Comelec said in their appeal.

They said the same ACMs provided by the MPC had been used in two elections recently held in South Korea, and have passed the 99.995 required accuracy rating of the DOST.

The MPC, for its part, submitted a 97-page motion for reconsideration contending the SC committed a mistake in junking the ACM contract on the basis of the software flunking the DOST tests.

The firm said SC was "stiff" in its finding that the MPC failed to achieve the accuracy rating of 99.9995 percent and for stating that the Comelec arbitrarily lowered its standard just to accommodate the bidder.

"The desired accuracy rating of 99.9995 percent and the supposed downgraded standard of 99.995 was insignificant, considering that the error translates to only one ballot error out of 20,000 ballots submitted, the very number submitted by MPC during the DOST testing," the MPC said.

In fact, the MPC said it obtained a 100 percent accuracy rating after another round of tests.

MPC maintained it was premature for the SC to decide on the matter since the petitioner — Information Technology Foundation of the Philippines (ITFP) — had yet to exhaust administrative remedies and avail of the protest mechanism under the law.

Through its lawyers led by Alfredo Lazaro, the MPC claimed the SC’s Jan. 13 ruling was "unsubstantiated" since the tribunal merely relied on the claims made by ITFP.

Both the Comelec and the MPC said the SC, in its decision, raised technical questions on computer software development which is best left to experts in the field.

The MPC stressed there was no way the final version of the software could be made immediately available, which was one of the main concerns of the SC.

The firm said it is ridiculous for the Comelec to expect proponents or bidders to include in their proposals a final version of the automated counting and canvassing software since it would cost too much and that the policies to be included had not yet been finalized.

The Comelec also said verification tests on the accuracy performance of the ACM from MPC conducted on April 11, 2003 yielded a 100 percent accuracy rating in all three conditions — cold, normal and harsh.

The poll body pointed out the ACMs of Mega Pacific have since been provided with the statutorily required audit trails as well as the detection and prevention program for downloading and entering of previously downloaded data.

These two mandatory requirements had not been incorporated yet during the testing date but were subsequently incorporated shortly thereafter, the poll body said.

Eligibility

In its appeal, the Comelec said it did not commit grave abuse of discretion since no law was violated in following the Bids and Awards Committee’s (BAC) recommendation to award the contract to MPC.

The poll body claimed SC committed an error in saying that the BAC should have submitted for consultation the eligibility documents to the commissioner-in-charge of the Comelec’s legal department since this would violate Section 11 of Republic Act No. 9184, prohibiting a member of the commission en banc from being a member of the BAC and consequently from interfering in or meddling with the conduct of BAC of eligibility evaluation.

The Comelec said Willy Yu, the president of the lead agency, Mega Pacific eSolutions stated in a letter that the members — election.com, Ltd., ePLDT, SK C & C, WeSolv Open Computing, Inc. (subsidiary of Fujitsu, Phils. Inc.) and Oracle System Philippines, Inc. — have openly and publicly declared their agreement to form a consortium.

"There was therefore no reason at all for the BAC to believe that the consortium was non-existent considering the memoranda of agreement establishing the consortium... before (it) entered its bid," the Comelec said.