MANILA, Philippines – Precinct count optical scan (PCOS) machines to be used in the 2013 midterm elections may not work unless PCOS supplier Smartmatic irons out a legal dispute with its software supplier.
Former Commission on Elections (Comelec) commissioner Gus Lagman said Smartmatic filed a case against Dominion, the owner of the PCOS machine technology used in automating the 2010 national elections.
Smartmatic’s software license agreement with Dominion was terminated in May 2012. The agreement allows Smartmatic to use Dominion software to operate the PCOS machines, as well as install necessary software upgrades to enhance and address glitches in the system.
Lagman said Smartmatic never denied that they used Dominion technology. However, he said Smartmatic should either own the software or written it themselves.
“Comelec did not do anything about it. Problema ito dahil kung walang lisensiya from Dominion, paano gagamitin software? Eto nagpapagtakbo ng makina para gawin ng PCOS machine dapat gawin. Yun ang babasa ng balota na fine-feed ng botante. Siya rin magtatabulate, niyan. Siya rin magbabato. Sung wala software, di gagalaw iyan," he said.
"Kung grumabe pa labanan ng Dominion, if it does not improve and dispute is not resolved before 2013 elections, true it can doom the elections,” he said.
Lagman, who recently joined the poll watchdog AES Watch, said Smartmatic confirmed in its complaint that the Dominion software has defects.
"Inamin ng Smartmatic na may errors sa software. Di lang binuksan resulta nung 2010 kasi laki lamang ni (President Aquino). More than 5 million votes lamang. Swerte Comelec,” he said.
Lagman showed ABS-CBN a copy of the complaint Smartmatic International Corporation filed against Dominion Voting Systems International Corporation, Dominion Voting Systems Inc, Dominion Voting Systems Corporation and Iron Mountain Intellectual Property Management Inc. in the court of chancery of the state of Delaware, in the United States. The case was filed September 11, 2012.
The complaint said that in 2009, Dominion gave Smartmatic a worldwide license agreement to market, use and sell PCOS voting systems using Dominion's optical scan voting system technology.
The agreement calls for Dominion to provide Smartmatic with hardware, software, firmware and technical support.
Lagman said the complaint even raises questions about the accuracy of the 2010 Philippine elections.
In the complaint, Smartmatic alleged Dominion failed in its obligations by among others, failing to deliver fully functional technology for use in the 2010 Philippine National elections, failing to provide timely technical support during and after the Philippines' election and failing to place in escrow with Iron Mountain International the required source code, hardware design and manufacturing information.
Lagman said that under the terms of reference for the automation of the 2010 elections, Smartmatic should have owned the technology.
Dominion terminated the agreement on May 23, 2012 following Smartmatic's requests for enhancements to the PCOS technology.
On June 6, 2012, Dominion notified Smartmatic it would agree to the enhancements subject to new payment terms.
Lagman explained that enhancements are akin to software updates on mobile phones, which cures bugs and glitches in the machines.
‘Congress should investigate’
Lagman and AESwatch call on the Joint Congressional Oversight Committee led by Senator Miriam Santiago to investigate the problem.
He said the JCOC has not convened since the 2010 elections to assess the performance of Smartmatic. "It should have convened itself within 6 months."
The former Comelec official said this does not necessarily mean a return to manual elections since the Comelec can always bid for other technology.
Smartmatic President Cesar Flores sent this statement when sought for comment.
"As we stated in our worldwide press release, distributed immediately after the filing, none of our customers will be affected in any negative way by this lawsuit. Smartmatic is fully capable to provide all support to Comelec and all customers, regardless of any rifts with any of its providers.”
“For the Philippines, we draw on our extensive experience, and we will incorporate the modifications and enhancements to the election system purchased by COMELEC that were requested and completed in 2011. Smartmatic's action is a legitimate commercial complaint against a sub-provider that did not honor its agreement, and did not deliver what was expected. Business as usual."