The Manila Times - 2019 elections: ‘Laway’ of Venezuelans or ‘talino’ of Filipinos? (Part 2)

3 January 2018

By Nelson Celis | The Manila Times 

Part 2
EPISODE IV (2011-2013). The support for FIT4E byformer Comelec Chairman Brillantes gave AES Watch high hopes of stopping Smartmatic’s relentless disregard of our Philippine laws, most especially the Automated Election Law (RA 9369) and the Government Procurement Reform Act (RA 9184).

Inspired by Brillantes’ support of Filipino ingenuity, then Comelec Commissioner Gus Lagman assembled a system development team composed of IT people from the Comelec and the Department of Science and Technology (DOST) to develop a permanent solution for solving the problem of canvassing and consolidating election results from the municipalities up to the national canvassing centers. Lagman’s design was based on the concept that the CCS logic would not change regardless of the vote-counting technology (i.e., PCOS, DRE, etc.). The CCS was finished in a matter of months in 2011, just in time for the 2013 mid-term elections. Surprisingly, the Comelec only spent P600,000 for that in-house developed CCS compared to Smartmatic’s CCS worth P50 million. However, Brillantes forgot all about the FIT4E and simply disapproved the implementation of the Comelec’s CCS in 2013!

One contributing factor for why the in-house-developed CCS was shelved was the fact that Comelec had already fixed their decision to acquire the 83,040 PCOS machines used in the 2010 elections through the option to purchase (OTP). Obviously, the Smartmatic’s CCS was already bundled in that OTP. However, the deadline set by the lease contract originally signed in 2009 for the OTP was until December 2010. Comelec did not act till they thought that they were already running out of time to prepare for the next 2013 elections. After collaborating with Smartmatic, Comelec was given an extension up to March 2011.

Nonetheless, the opinion of the Government Procurement Policy Board (GPPB) of the Department of Budget and Management differed from Comelec’s intention to proceed with the OTP. In its letter to Comelec dated March 12, 2012, GPPB states, “…as early as 18 December 2010,Smartmatic-TIM unilaterally offered to extend the OTP until 31 March 2011. Comelec took no action on the offer; hence, on 1 April 2011, Smartmatic-TIM offered, motu propio, a Revised and Extended OTP proposed to be effective until 31 December 2011… The offer of 1 April 2011 not having been accepted, Smartmatic-TIM made another offer dated 23 September 2011… As in the previous offers, Comelec did not accept the last offer made by Smartmatic-TIM… As in any other kind of contract…an option to purchase agreed to be valid and shall expire on a certain date, i.e., 31 December 2010, shall cease to be effective unless extended prior to the expiration of such option through the ‘mutual’ and ‘consensual’ agreement of both parties. It is common acceptation in law and jurisprudence that a ‘contract must bind both contracting parties, its validity or compliance cannot be left to the will of one of them… The contractual relation between Comelec and Smartmatic-TIM…is deemed automatically terminated upon expiration of the option on 31 December 2010. When the option to purchase expired…, there is nothing more to extend thereafter because the existing ‘offer’ that served as basis of the option to purchase had already ceased to exist, particularly when Comelec did not accept the unilateral and voluntary extension made by Smartmatic-TIM… Consequently, the subsequent extensions have no leg to stand on…as the original ‘offer’…was already non-existent. Consequently, the succeeding offers made by Smartmatic-TIM…are regarded as ‘new’ offers that need to comply with existing laws…before it may be accepted legally.”

On the other hand, the Comelec’s Advisory Council (CAC) recommended not to exercise the option to purchase the 2010 PCOS machines. But Comelec still insisted. (Read the three-part series last year in this column entitled “The Advisory Council: What is its real value to Comelec”?) Further, the CAC offered ICTO’s 300,000 digital certificates for use by the Board of Election Inspectors and Board of Canvassers in the 2013 elections so that the problem related to digital signing in 2010 could be resolved. Again, Comelec didn’t bother to listen!

Anyhow, Comelec was able to get the nod of the Supreme Court through its ruling that said: “Comelec is confronted with time and budget constraints…, the exercise of the option, and the execution of the of sale, are the more prudent choices available to the COMELEC for a successful 2013 automated elections. The alleged defects in the subject goods have been determined and may be corrected as in fact fixes and enhancements had been undertaken by Smartmatic-TIM.” Hence, gone with the Comelec’s in-house-developed CCS and so with the FIT4E.

The preparations for the 2013 elections moved on in 2012 but the fixes never happened due to Smartmatic’s refusal to refurbish the PCOS machines. To make the situation worse, there was a legal battle between Smartmatic and Dominion Voting System. The former sued the latter for the software error in 2010. That only shows that the AES used in 2010 was really defective!

(To be continued)