MANILA, Philippines – The legal dispute between Smartmatic and software provider Dominion in the United States will not stop the Commission on Elections (Comelec) from using Dominion-powered Smartmatic precinct count optical scan (PCOS) machines in the 2013 elections.
Smartmatic President Cesar Flores made this stern assurance as he faced off with critics before the second hearing of the Joint Congressional Oversight Committee (JCOC) on the automated election system.
Flores bristled at CenPeg's Evita Jimenez and former Comelec Commissioner Gus Lagman for what he described as personal attacks against Smartmatic.
Lagman told the body that 6 months before the midterm elections, there is no assurance that the automation plan will work since critical issues about the system in 2010 have not been resolved.
The former poll commissioner said there seems to be no definitive date as to when the legal dispute between Smartmatic and Dominion will be resolved.
"How can fixes and enhancements continue if Smartmatic is not authorized to do so? How can Comelec use it if there is no licensing agreement?” he asked.
Lagman also said under bidding rules, subcontractors should have been disclosed at the offering of bids.
He questioned the accuracy rate of the PCOS machines, which he said failed to meet the required 99.95% and just attained 97.21 % in a mock election at the House of Representatives. Lagman said this translates to 557 errors in 20,000 marks.
Lagman urged the poll body to quickly study available alternatives for automation while there's still time and to cancel the purchase of the PCOS machines.
AESWatch's Maricor Akol said the contract with Smartmatic incurred major violations of the law like the non-implementation of digital signatures for election returns.
Akol also recounted instances of alleged hacking and manipulation preloading and unauthorized scanning of ballots.
She also pointed out that the recall of CF cards on May 3, 2010 was because of a failure in the technology. “Smartmatic was not able to rectify the bugs for 2013,” she said.
Jimenez, meanwhile, said she finds Dominion’s statements more believable because it is consistent with reports from the ground during the elections in so far as glitches are concerned.
Comelec Chaiman Sixto Brillantes said he has seen documents regarding the dispute.
“Comments are being made by non-legal people discussing legal issues. Being non-legal individuals they interpret allegations in pleadings filed in a foreign country. How can you believe somebody you have never talked to. You're relying on legal documents when you're not even a lawyer,” he said.
The Comelec chief reiterated that the contract with Smartmatic had already been upheld.
He also confirmed he has made informal discussions with Dominion but did not disclose details.
Flores reiterated that the requirement for digital signatures was complied with by Smartmatic.
The critics, however, said that what they’re complaining about is the lack of digital signatures of the boards of election inspectors and not the machine digital signatures of the PCOS machines, which are contemplated in the automation law.
Jimenez then stressed that Smartmatic is a marketing agency and not a tech company. He noted that initially, Smartmatic wanted the paperless direct recording electronic system instead of the PCOS machines.
This drew the ire of Flores.
"I question your capacity as a researcher with due diligence. You'll know we have developers of technology, we're a supplier to the United Nations. President Carter called our technology the best in world,” said Flores.
Flores said Smartmatic initially marketed direct recording electronic system since they believed that the future is paperless elections.
Flores then criticized Lagman, whom he said was not able to discover during his stint at the Comelec that Smartmatic's bid already contained the software license agreement with Dominion.
He then recalled Smartmatic's track record with election administration in other countries.
Flores explained that their 2009 worldwide licensing agreement with Dominion allows them to use Dominion software but they also developed software on their own.
Flores explained that licensing software from other companies is an industry practice since few companies own both hardware and software components of an election system.
Flores said the licensing agreement is good for 5 years and stipulates what happens if Comelec will buy the PCOS machines.
He said that since Comelec bought the PCOS machines, they are also tied to the software licensing agreement.
Flores said Dominion's termination of the agreement does not free them from complying with requirements. He pointed out that Dominion itself has not stopped Comelec from using the software.
"Dominion has never expressed that Comelec cannot use the technology… what they're trying to dispute is our marketing of technology."
Flores also announced that 40 enhancements to the PCOS machines are already in the process of certification.
JCOC Senate panel chair Alan Peter Cayetano confirmed that subcontracting is an industry practice.
Flores further said Smartmatic is entitled to make modifications. He also noted that the Supreme Court already upheld the validity of the contract twice.
Brillantes maintained that the legal dispute between Smartmatic and Dominion does not affect their preparations for the 2013 elections.
He even took a swipe at automation critics whom he accused of cherry-picking details from the Smartmatic-Dominion dispute to suit their criticism.
Brillantes maintained they are ready for the elections and dismissed the critics whom he said will never be satisfied.
He said he is even considering "accrediting" who will be the critics they will talk to.
"They will never be satisfied even if we talk to them everyday. Problema kasi gusto lang nila magpapansin ng konti. Okay lang sa ‘kin ‘yun. ‘Di na naming nakikita ang motivation eh, nakukulitan na nga ko sa inyo, explain kami ng explain ‘di niyo pinaniniwalaan,” said Brillantes.
The Comelec also said it will soon announce a reshuffle of its field officers and personnel in time for the start of the election period.