The automated elections may still push through, even with the same contractor.
So long as it complies with the procurement law, the Commission on Elections (Comelec) may still proceed with outsourcing services for the maintenance of voting machines for the May 2016 general elections, even with Smartmatic-TIM (Total Information Management) Corp. as its contractor.
The Supreme Court’s ruling that nullified Comelec’s P268.8-million contract with Smartmatic for the diagnostics, maintenance and repair of 80,000 voting machines does not bar the polling body from entering into another direct contract or another procurement method with any firm, as long as they satisfy requirements of the Government Procurement Reform Act (GPRA).
“Note that the disposition of these cases does not prohibit the Comelec from resorting to direct contracting anew or other alternative method of procurement with any service contractor, subject to compliance with the conditions provided in the GPRA and all the pertinent rules and procedures,” the 56-page ruling read.
The decision meant even Smartmatic remains qualified to serve as contractor for the maintenance and repair job.
Such details about the court’s disposition came in late afternoon yesterday, when the court released its full ruling on the petitions filed by the Integrated Bar of the Philippines (IBP) and Bishop Broderick Pabillo, along with copetitioner Automated Election System (AES) Watch.
Citing the lack of public bidding, the petitions asked the court to invalidate Comelec Resolution No. 9922, which paved the way for the contract signed by former Comelec Chair Sixto Brillantes just before he retired in early February.
The high court released only the dispositive portion of the decision on Tuesday, after the last en banc session at the Supreme Court in Baguio City.
The ruling had triggered concerns over its possible impact on the May 2016 elections, including a worst-case no-elections scenario.
The court had nullified the Comelec-Smartmatic’s extended warranty contract on Tuesday because of violations of the GPRA, which lays down strict direct contracting provisions that the poll body had failed to satisfy.
“There are no qualms about the task of having the PCOS (precinct count optical scan) machines repaired and refurbished. However, there are serious and unignorable legal flaws about how the Comelec intends to pursue this undertaking,” read the ruling.
“Bluntly, the Comelec has failed to justify its reasons for directly contracting with Smartmatic-TIM: It had not shown that any of the conditions under Section 50, Article 16, of the GPRA exists; its claims of impracticality were not supported by independently verified and competent data, and lastly, its perceived ‘warranty extension’ is, in reality, just a circumvention of the procurement law,” it said.
This section of the law requires, among others, that direct contracting may be allowed if goods to be procured were “of proprietary nature” and “can be obtained” from a single source or if the goods were “sold by an exclusive dealer or manufacturer” with “no suitable substitute.”
The court found that Comelec had failed to prove that these conditions exist in the Comelec-Smartmatic contract.
In the ruling, the court also cited statements from Comelec spokesperson James Jimenez, who allayed fears that the automated elections may come in peril in case of an adverse ruling.
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