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Is The COMELEC Bid Process Immune From Suit?

May 17, 2009


The Commission on Elections is shrugging off fears that losing bidders in its now-behind-schedule tender for an automated election system might sue to prevent the award for the PhP11.3-B contract from pushing through.

Atty Ferdinand Rafanan, the bidding committee chairman, insists the poll body has iron-clad waivers signed by each of the bidders preventing any legal challenge.

But do the waivers really block legal challenges if questions are raised about the integrity of the bid process thus far?

Just last week one of the disqualified bidders, Avante International of the US, Canon Marketing of Japan and Netnode Technologies, DB Vizards and Creative Points of the Philippines said the Comelec’s decision on the bidders’ motions for reconsideration (MR) was lopsided and could bring the project to a halt.

Quoted in a report by the Philippine Star, consortium spokesman Leo Querubin slammed  the ruling of Comelec’s Special Bids and Awards Committee (SBAC) as being  “flawed.”

“There is a lot of inconsistencies in the decision and unequal application of rules… We’re just giving ammunition to the vitriolic critics of Comelec to seek a temporary restraining order (TRO) against the automation and we were really frustrated with the decision,” Querubin complained.

Quoted separately in the COMELEC ‘s own blog, Atty. Rafanan said “he remains confident that the automated elections next year will push through despite threats of a looming no elections (NoEl) scenario.

“We are focused on the successful automated elections on May 10, 2010 and I foresee that this will happen,” Rafanan, who also sits as the Chairman of the poll body’s Special Bids and Awards Committee (SBAC), said during the sidelines of the poll automation bidding which resumed today.

“92% of the Filipino people want automation,” he said, as he warned that those who would dare push for NoEl would definitely face the wrath of the people.

The COMELEC legal chief also clarified that the possibility of losing bidders’ derailing the 2010 automated elections by securing a temporary restraining order in its implementation is rather dim.

“The bidders signed a waiver giving-up their right to file a petition for injunction or to seek a temporary restraining order in the bidding process or in the implementation of the automated elections system,” Rafanan said.

“The waiver is part of the COMELEC’s requirements because we don’t want anything to get in the way of next year’s automated elections. Time is of the essence,” he noted.

It’s certainly fair for the chief COMELEC lawyer to underscore the time pressure they are under.

But he should not forget that there is a clear judicial precedent in that the last big automated elections bid award of the COMELEC was itself scuttled by a successful case initiated against the awarded contract to Mega Pacific.

That deal was nullified by the Supreme Court even as the Mega Pacific contract had been executed and the obligations partially performed. Mega Pacific had delivered Automated Counting Machines to the COMELEC with the poll body paying out over PhP 1-B.

Now those very machines are just in the COMELEC warehouse with the Supreme Court order for the COMELEC to recover its money neft unimplemented.

The COMELEC has just reported that only two bidders are left after having reportedly “met the technical requirements.”

The latest to be disqualified is the joint venture group of Israeli firm Gilat and construction company F.F. Cruz, leaving the Spanish-American partnership Indra Sistemas/Strategic Alliance Holdings, Inc./Hart Intercivic,  and Smartmatic International/Total Information Management Corporation to contest the contract in the final bidding stage.

By the way, Mr. Felipe F. Cruz acknowledged in a radio interview yesterday that he was in the COMELEC ‘ Toilet Incident’ video clip uploaded on YouTube.

The matter is being investigated by the NBI and the COMELEC Ombudsman on orders of Chairman Jose Melo.

It is an understatement but not a few are keeping their fingers crossed about how things play out.

It is an understatement but let’s keep our fingers crossed about how thing play out.

Writing recently in BusinessWorld, Dr. Rene B. Azurin, one of the country’s foremost information communication technology experts drew up this scenario: “the automated election system chosen by the Commission on Elections (Comelec) results in widespread voter disenfranchisement, contested tallies, disorderly protests, and violent confrontations, so that the poll body is forced to declare a failure of elections. In that scenario, the incumbents — most notably the President — will be “forced” to continue in office until the situation is resolved (which could take a long time). Is this a “set play” that we citizens should worry about? “

Azurin goes on to remind Filipinos that during the ARMM balloting the COMELEC the Precinct Count Optical Scan – PCOS  technology.

This had been rated by the poll body’s own Citizen’s Advisory Council  (CAC) “as only ‘Almost Compliant’(meaning, it was not “Fully Compliant”) in terms of “Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results” and “Least Compliant” in terms of “Accurate Ballot Counters.”

“…if the Comelec’s decision to fully automate the 2010 presidential elections using the Optical Mark Reader (OMR) pilot-tested in the 2008 ARMM elections is in fact ill-advised, that scenario could be made a distinct possibility,” Azurin warned.

The highly respected ICT expert noted that in “a precinct in Shariff Kabunsuan where the actual number of votes cast was 371 but the machine counted only 276 (a discrepancy of 95), meaning that the machine was off by a whopping 26%. In that specific case, the Board of Elections Inspectors (BEI) ordered a recount and the machine then counted 365, meaning that it was still off by six votes or almost 2%.”

This writer has also come across reports that PCOS machines are being challenged legally in various lawsuits in the USA, precisely for inaccurate counting of ballots.

These include: ES&S e-voting system used in California cracked wide open, Dec. 5, 2007; Smartmatic to Bail from E-Voting Business Dec. 26, 2006; Sequoia Voting Systems should not be certified by the Illinois State board of Elections, Oct. 16, 2005.”

The citizens group Transparent Elections led by former COMELEC Chairman Christian Monsod has also warned about how “the Precinct Optical Counting Scan (PCOS will  not be transparent because it will  put the election results in the hands of “software specialists” who could manipulate the votes.”

“It is possible to automate the cheating,” Monsod said.

My own final note: even granting that the losing bidders “waived” their legal prerogative to question an upcoming bid award by a public agency using public funds are Filipino taxpayers not parties in interest themselves?

Nuff said, for now.

3 Comments leave one →
  1. jcc34 permalink
    May 17, 2009 9:14 am

    a multi-billion contract being inked out inside a comfort room?

  2. May 17, 2009 9:40 am

    Kahina-hinala kung tutoong bid documents ang pinipirmahan, jcc.


  1. Manual Elections And COMELEC’s Bungled Attempt To Outsource Its Job « At Midfield

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