Lawyers urge SC to nullify P268.8-M Comelec contract with Smartmatic

MANILA, Philippines – A national organization of lawyers asked the Supreme Court to nullify the P268.8 million contract awarded by the Commission on Elections (Comelec) to technology provider Smartmatic-Total Information Management (TIM) for the diagnostic of all the 82,000 Precinct Count Optical Scan voting machines (PCOS) for lack of public bidding.

In a 28-page petition, the Integrated Bar of the Philippines through its national president Vicente Joyas and general counsel Pacifico Agabin, former law dean of the University of the Philippines, also asked the high court to stop the implementation of the contract under Comelec Resolution No. 9922.

IBP said Comelec Resolution No. 9922 is null and void because it violated Republic Act No. 9184, otherwise known as the Government Procurement Reform Act.

“Comelec’s approval [of the contract] constitutes grave abuse of discretion as it grossly violates the requirement of public and competitive bidding under RA 9184 which was enacted to ensure transparency in procurement processes conducted by the government,” IBP said.

The Comelec said that due to time constraints they have resorted to skip public bidding. But petitioner said Comelec’s reason is not among the conditions to allow direct contract.

Under the Procurement Act, direct contract is allowed only when the goods to be bought can exclusively be obtained from the proprietary source; when the Procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract; or, goods can only be bought to a dealer or manufacturer that does not have sub dealers selling at a lower price.

“Worse, the Comelec cited its main reason, the perceived “tight time schedule,” in validating its arbitrary resort to direct contracting. In effect, the Comelec added “tight time schedule” to the exclusively listed conditions under the law to justify its decision to directly contract with Smartmatic. This cannot be allowed,” IBP said.

This is the third petition filed before the Supreme Court against the contract between Comelec and Smartmatic.

Earlier, election watchdogs Citizens for Clean and Credible Elections (C3E) and Automated Election System (AES) Watch have also filed separate petitions before the high court seeking to blacklist Smartmatic from participating in any bidding process for next year’s elections.

The two groups also asked the Court to issue a TRO enjoining the Comelec from awarding any contract to Smartmatic or from proceeding with the bidding of multi-million contracts for the 2016 elections where the latter is a participant.

The petitioners were also referring to the P268.8-million contract for the diagnosis of the PCOS machines for reuse in the 2016 elections; procurement of the Optimal Mark Reader (OMR) and Direct Recording Electronic (DRE) Machines; and the procurement of papers, or the lease of Election Management System (EMS) and Precinct-Based Direct Recording Electronic (DRE) Technology.

Like IBP, the petitioners argued that the award of contract to Smartmatic for the diagnostic of the PCOS machines contravened R.A. 9184 as it brushed aside the requirement of a competitive bidding.

The groups also insisted that Smartmatic should be barred from participating in the procurement for the 2016 Elections, or in any government procurement, for a period of at least two years for committing several “misrepresentations” to the poll body and for violating its obligations under the 2010 automated election system project contract.