Comelec ordered to answer petitions vs PCOS deal

BAGUIO CITY, Philippines – The Supreme Court (SC) has ordered the Commission on Elections (Comelec) and Smartmatic to answer two more petitions seeking to cancel its P1.8-billion contract to buy the precinct count optical scan (PCOS) machines used in the May 2010 elections for next year’s midterm elections.

The justices agreed to issue a resolution requiring the Comelec and Netherlands-based Smartmatic to submit their respective comments on petitions filed by the Automated Election System Watch (AES Watch) led by former Vice President Teofisto Guingona Jr. and Solidarity for Sovereignty (S4S) led by Ma. Linda Montayre, to stop the purchase of some 82,000 PCOS machines.

SC spokesman Midas Marquez said the respondents were given 10 days from receipt of notice to comply with the order.

The SC earlier ordered Comelec and Smartmatic to answer a similar petition filed last week by a group led by Davao City Archbishop Fernando Capalla.

The petitioners claimed that the contract was illegal since there was no prior bidding as required by law.

AES Watch, through volunteer lawyer Felix Carao Jr., said the Comelec-Smartmatic deal should be declared null and void because it violated Republic Act 9184 or the Government Procurement Reform Act.

The group said Comelec’s option to purchase the PCOS machines expired on Dec. 31, 2010. Smartmatic could not allow an extension, the group said.

“The option to purchase had already expired. Hence, the new deed of sale signed last March 30 is null and void,” AES Watch’s petition stated.

“The poll body committed grave abuse of authority by entering into the contract despite incontrovertible findings of glitches, malfunctions, bugs and defects of the Smartmatic PCOS machines and related paraphernalia,” the group added.

The petitioner cited a letter of the Government Procurement Policy Board (GPBB) last March 28 to the Comelec, which echoed a similar concern.

The three petitioners said the Comelec also committed grave abuse of discretion in approving the contract through Resolution 9376 despite a resolution issued by the Comelec Advisory Council (CAC) last Feb. 8, reiterating its opposition to the planned purchase of the PCOS machines.

The Comelec should not use the same PCOS machines and should look for better options for the May 2013 elections, CAC added.

The petitioners said the deal also violated Section 10 of the Automated Election System law, which requires that for the May 10, 2010 election and succeeding electoral exercises, “the system procured must have demonstrated capability and been successfully used in a prior electoral exercise here or abroad.”

They said the Comelec should have looked for other providers through public bidding when it did not exercise its option to purchase the PCOS machines before Dec. 31, 2010.