SC issues TRO vs PCOS machines deal

MANILA, Philippines - The Supreme Court (SC) stopped yesterday the Commission on Elections’ (Comelec) P1.8-billion deal for the purchase of precinct count optical scan (PCOS) machines for next year’s automated midterm national polls.

In a press conference in Baguio City, SC spokesman Midas Marquez announced that the high court has issued a temporary restraining order (TRO) enjoining the Comelec and Netherlands-based Smartmatic from proceeding with their contract for the purchase of some 82,000 machines.

Comelec spokesman James Jimenez, however, said that the TRO was just a temporary setback.

The SC, in its final session in the summer capital for this year, granted the initial relief sought in the consolidated petitions of Automated Election System Watch (AES Watch) led by former Vice President Teofisto Guingona Jr., the Solidarity for Sovereignty (S4S) led by Ma. Linda Montayre, and another group of concerned citizens led by Davao City Archbishop Fernando Capalla.

Marquez said the justices also decided to set oral arguments on the case on May 2 at 9 a.m. at the SC building in Manila.

All three petitions questioned the legality of the new Comelec–Smartmatic deal.

The petitioners argued that the new contract was illegal since it did not undergo bidding as required by law.

AES Watch, through volunteer lawyer Felix Carao Jr., explained that the deal should be declared null and void having been issued in violation of Republic Act 9184 (Government Procurement Reform Act).

They said Comelec’s option to purchase the PCOS machines had already expired when the poll body failed to exercise the same before its expiration last Dec. 31, 2010.

As a result, Smartmatic could not extend the option period and neither could the Comelec give its consent for its extension as this would violate the guidelines issued by its Bids and Awards Committee (BAC) which fixed a definite period within which the poll body could exercise the option to purchase provisions of the automation contract, petitioners argued.

Since the option to purchase had already expired, they stressed that the purchase of the 82,000 PCOS machines should require a public bidding since it would involve new contract altogether.

They also argued that the Comelec committed grave abuse by entering into the contract despite incontrovertible findings of glitches, malfunctions, bugs, and defects of the Smartmatic PCOS machines and related paraphernalia.

The petitioners noted that the Comelec should have already looked for other providers of the PCOS machines through public bidding when it opted not to exercise its option to purchase before its expiration on Dec. 31, 2010.

They also dismissed the claim of the Comelec that its decision to purchase Smartmatic’s PCOS machines was to prevent possible delay in the preparations for the 2013 elections.

They noted that for the 2010 elections, the Comelec conducted its bidding for an AES in July 2009 or just 10 months before the election date.

But Jimenez said that the Comelec was confident it was doing the right thing when it entered into the contract.

“We remain confident and we understand that the TRO is a protective measure. It’s not a judgment on the merit,” he said.

Jimenez added the Comelec is hopeful that the SC would decide on the matter “with as much speed as this TRO came out” so that they can take their next step.

Asked about the possibility of the tribunal ruling against the use of Smartmatic’s PCOS in the 2013 polls, Jimenez said it is not only time that would be an issue if the Comelec holds a bidding for another technology.

Despite all these, Cagayan de Oro City Rep. Rufus Rodriguez believes that the SC would eventually allow the Comelec to acquire and use the PCOS machines in the May 2013 elections because it “will save the government more than P6 billion, which could be used for building more roads and classrooms.” – Jess Diaz, Sheila Crisostomo