Two former justices refined poll automation contract

By Aries Rufo,

Posted at Jul 10 2009 05:30 PM | Updated as of Jul 12 2009 12:40 AM

  • Automation contract signed
  • High Court to tackle TRO petition on Tuesday

MANILA - Two former justices helped refine the P7.2 billion automation contract between the Commission on Elections and the joint venture partnership of Smartmatic and Total Information Management Corporation to ease concerns that the project is doomed to fail.

Angelina Gutierrez and Hugo Gutierrez (not related) were tapped by Comelec chair Jose Melo to go over the automation contract that has been prepared by Smartmatic. The former magistrates have been working on the draft contract when the celebrated rift between Smartmatic and TIM broke out.

The contract was signed Friday, despite the possibility of the Supreme Court stopping the proceeding. On Thursday, UP professor and lawyer Harry Roque sought a temporary restraining order on the contract signing citing among others legal flaws in the juridical personality of the winning bidder.

Roque said the joint venture violated the anti-dummy law when they declared in the Senate hearing that the operations between Smartmatic and TIM were actually 90-10 respectively, when the partnership was supposed to be 60-40 in favor of TIM.

But the High Court did not act on Roque’s petition for TRO, clearing the way for the signing of the contract. SC spokesman Midas Marquez said that “since the Court has not issued a TRO, then the Comelec may proceed at its own discretion.”

Go on, SC tells Comelec

Signing was initially set at 2 p.m. but was delayed to due some “editorial content” that had to be reconciled, a high-ranking Comelec source said.

The source said the Comelec went ahead in fine-tuning the final terms of the contract after receiving a call from a SC justice to proceed with the signing. “ The en banc was told the SC will not issue a TRO.”

The justices are expected to tackle Roque’s petition on Tuesday, when the SC holds its regular en banc meeting.

In a statement, Roque said the SC’s non-action is just a minor setback. He pointed out that the implementation of the contract can still be restrained.

“This was clearly the situation in the Mega Pacific case, wherein the Supreme Court declared as null and void the contract executed between Comelec and Mega Pacific eSolutions, even after payment was made by the Comelec . In any case, let it not be said that we did not warn the public against automated failure of elections and automated cheating. We filed the case out of a strong sense of public duty; we will remain vigilant and we will not give up until we’ve seen the case through,” Roque said.

The Mega Pacific contract, involving P1.2 billion, would have been the first system to automate elections nationwide. The project was supposed to have been implemented in time for the 2004 national polls.

Mega Pacific counting machines are being stored in a warehouse in Manila since there is a pending civil and criminal case. In this case, one of the major issues was that the consortium was formed only days before the bidding.

Safety nets

A source familiar with the contract said the set-up between Smartmatic and TIM, whatever it may be, “has no bearing” on the legality of the contract.

What is important is that government interest is not disadvantaged in the contract.

The source said the contract has “sufficient safety nets” protecting the government’s interests.

Removed or deleted were provisions that supposedly violate the law. For instance, in the draft agreement, Smartmatic and TIM sought a downpayment before the delivery of goods and services. This provision was removed for being violative of the law, the source says. Payment will only be made after supplier has made the delivery.

Commissioner Nicodemo Ferrer, in a separate interview with, said the first batch of electronic voting machines will be delivered late July or August. About half of the 82,200 machines will be delivered.

Ferrer said the machines will then be inspected and tested before these are accepted by Comelec.  The warehouse where the machines will be stored in the meantime will be kept secret for security reasons. - Newsbreak