SC hears debate over PCOS machines

by Ina Reformina, ABS-CBN News

Posted at May 02 2012 02:42 PM | Updated as of May 03 2012 05:05 AM

MANILA, Philippines (3rd UPDATE)- The Supreme Court (SC) began oral arguments on Wednesday morning on the consolidated petitions seeking the nullity of the Commission on Elections’ (Comelec) P1.8 billion purchase of 2010 automated election system (AES) provider Smartmatic-TIM’s precinct count optical scan (PCOS) machines. 

First to present his arguments and first to be subjected to the magistrate’s questioning was Dean Abraham Espejo of the New Era College of Law. Espejo represented petitioners Davao City Archbishop Fernando Capalla, et al.

During his allotted time, Espejo told the high tribunal led by Chief Justice Renato Corona that the Deed of Sale between Smartmatic-TIM and the poll body for the purchase of the counting machines should be nullified for violating the Government Procurement Act.

He said the purpose of the contract inked between Comelec and Smartmatic-TIM in September 2009 was for the lease of an  automated election system for the 2010 elections, while the purpose of the contract for the option to purchase was for use in the 2013 elections.

Espejo stressed that the contract entered into by the poll body and Smartmatic-TIM was only for purposes of the 2010 polls.

“Thus, Comelec could not validly accept the extension of time unilaterally extended by Smartmatic because that is tantamount to the Comelec entering into another agreement… that under the law requires a different bidding,” Espejo told the high court.

Exceptions to public bidding

The option to purchase in the 2009 contract lapsed on Dec. 31, 2010. Smartmatic-TIM offered Comelec and extension up to March 31 this year.

Comelec inked the purchase contract last March 30.

Several justices asked Espejo if the contract to purchase may fall under any of the 5 exceptions to the conduct of public bidding found in the Government Procurement Act, to which Espejo answered in the negative.

Associate Justice Maria Lourdes Sereno asked Espejo if the purchase may not be considered a repeat order in which case a bidding may not be undertaken.

Espejo, however, pointed out that this will amount to an “overstretching of the law.”

Enough time to bid again?

Sereno also pointed out that there may not be enough time for the Comelec to conduct a public bidding and prepare for the technology and system to be used in the 2013 polls.

Espejo responded by saying he was confident that the poll body could work double time to prepare for the next polls.
“Are you now telling us that the Comelec violated the procurement law… regardless of the consequence, we must now proceed with a new bidding. That’s what you are telling us right now, that we have no moral responsibility at all… whether the 2013 elections succeed or not,” Sereno told Espejo.

Espejo, however, stood his ground and stressed that the Comelec should not be allowed to violate the law.

“The choice is not whether or not we will have automated elections in 2013. I think the choice is whether we will allow the Comelec to violate the Procurement Law. Beyond that is a matter of policy… and I’m sure that the Comelec, with all its resources, can find  a viable alternative. We cannot abdandon the law simply because it looks good to abandon it and neither can we abandon the law because of a stretched interpretation of the law,” he said.

Petitioners also argued that since the Comelec Advisory Council (CAC) had advised the poll body not to avail of the option to purchase the PCOS machines, a public bidding should have been done, especially since several technical glitches that occurred in the May 2010 polls have not been resolved by Smartmatic-TIM.

Delay in PCOS purchase

Associate Justice Arturo Brion, meantime, asked questions regarding the timeline from the signing of the 2010 automation contract 9 up to the date the option to purchase lapsed. He asked Espejo, if at any point in the said period, did Comelec decide to purchase all 82,000 machines.

Espejo answered in the negative, but said he did not know why the Comelec “mysteriously” did not do so and only decided to purchase the machines two months ago. 
It was also during Brion’s questioning that it was established that the machines, while purchased at a relatively lower price, are not brand new.

All justices were present in the special session, except for Associate Justice Teresita Leonarda-De Castro who is on leave.

The high court suspended the oral arguments before lunch time and the special session resumed at 2 o’clock.

Lagman asked to explain dissent

Upon the request of Justice Brion, former Comelec Commissioner Gus Lagman was called to expound on his formal dissent to the poll body's resolution availing of smartmatic's extension offer on the option to purchase the machines .

Lagman, who was present in the hearing, willingly answered the magistrates' queries.

Lagman, an IT practitioner, said the option to purchase should not have been availed of since it violates the procurement law.

He also pointed out that "problems with the machine are not yet corrected" such as the existence of an open port that may be accessed by ordinary computers, absence of digital signatures, rewritable compact flash cards, etc.

"It is very vulnerable to tampering, there are not enough security features," Lagman told the high court.

Asked by Justice Brion if the PCOS machines could have transmitted inaccurate election results in 2010, Lagman answered in the affirmative.

Lagman said, because of the absence of the security features, the machines could have been used anywhere in the country to override the transmitted results.

Limitations to discussions

In an advisory, the high court had directed the parties (petitioners and Comelec) to limit their discussions on the following :

1- whether or not the Comelec may validly accept the extension of time unilaterally given by Smartmatic-TIM;

2- whether or not the acceptance of the extension and the issuance of comelec en banc Resolution no. 9376 violate Ra No 9184 or the Govt. Procurement Reform Act and its IRR, and Ra no. 9369 (Automated Election System Act);

3- whether or not the PCOS machines used in the 2010 elections substantially complied with all the conditions and attained all the objectives set for them by law and by the Comelec; and

4- if not, whether or not their deficiencies can be rectified and pretested in time to allow for the application of an alternative system of election or the use of some companion system that can support the use of the machines.