SC junks motion to stop Comelec contract on compact flash cards

MANILA, Philippines - The Supreme Court junked yesterday the petition of a losing bidder to stop the contract of the Commission on Elections (Comelec) for the purchase of compact flash cards to power the precinct count optical scan (PCOS) machines for the polls in May.

Justices of the high court voted in regular session to dismiss outright the petition of private firm LDLA Marketing, which sought a halt order against the Comelec’s P45-million contract with Smartmatic International Corp. for the 82,000 CF cards, for lack of jurisdiction.

The SC held that the petitioner failed to exhaust all necessary legal remedies with the Comelec before elevating the matter to the high court.

It explained that Republic Act No. 9184 (Government Procurement Act) provides for a process for protest.

“The procedure is to file a motion for reconsideration with the BAC (Bids and Awards Committee) concerned, and, in case of a denial, file a protest with the Head of the Procuring Entity (HoPE), in this case, the Comelec chairperson or the Comelec en banc. It is only after the HoPE has resolved the protest that the bidder may resort to the regular courts,” it pointed out.

The high court stressed that LDLA “did not avail of the remedies provided by the law and under existing jurisprudence,” therefore “the court is without jurisdiction to head the petition because of this mandatory protest mechanism.”

The LDLA, in its petition filed last month through its chief executive officer Norlito Domantay, accused the Comelec of “conspiring” with Smartmatic International Corp. in closing the P45-million deal for the 82,000 CF cards by eliminating other bidders.

It questioned why the Comelec special bids and awards committee (BAC) asked Smartmatic on Dec. 19 to submit a lower bid for the CF Card-Main in order to meet the approved budget for contract. 

Smartmatic then lowered its bid to P45.2 million, still higher than LDLA’s bid but within Comelec’s approved budget.

Petitioner also insisted that there was violation of requirement for public bidding under the law, which necessitates issuance of cease and desist order against the Comelec-Smartmatic deal.

Records showed that LDLA, Smartmatic and SPH International were invited to join the sealed bidding. Of the three, only LDLA Marketing participated in the first two biddings of CF Cards.

In the sealed bids last Dec.8, 2012, LDLA’s bid of P33.5 million was the lowest, while Smartmatic’s bid of P50.9 million was not only the highest, but also exceeded the approved budget for contract of P46.584 by about P4.3 million.

SPH International submitted the second lowest bid of P45.2 million.

The LDLA said that on this basis alone, Smartmatic should have already been disqualified under the Government Procurement Act.

It reiterated that the contract has put the government at an undue disadvantage.

A second bidding was called where LDLA participated again with another bidder. Unison’s financial bid for 82,200 CF cards was P44 million, while LDLA’s was P36.5 million.

The Comelec disqualified LDLA allegedly because its CF cards were difficult to eject from the PCOS.

Comelec special BAC chair Helen Aguila-Flores maintained that the process was aboveboard. She also said there was nothing wrong with the award to Smartmatic.