By Al Vitangcol 3rd | The Manila Times
THIS newspaper's "judicial and legal reporter," Jomar Canlas, filed a report on Tuesday with the headline, "Comelec execs face charges." This news report is the impetus for the topic of this week's column.
The 19-page manifestation and verified complaint, dated May 5, 2021, was filed by the Pivot International Inc. (PII) and Power Serve Inc. (PSI) joint venture through its authorized representative, Steven Allen Beyer.
There were two prayers in the complaint. The first is for the special bids and awards committee (SBAC) to "declare a failure of bidding, reject the bid, and/or not to award the contract for the procurement [of] vote counting machines refurbishment with consumables." The second is to treat it as "an administrative complaint against the end-user representative and members of the Comelec SBAC and the technical working group for serious dishonesty, grave misconduct, and/or conduct prejudicial to the best interest of [the] service."
The PII and PSI joint venture was originally declared by the SBAC as the bidder, which submitted the lowest calculated bid (LCB). However, the joint venture was disqualified during post-qualification, paving the way for Smartmatic (SMMT-TIM 2016 Inc.) to win the project. In short, the complaint questioned the joint venture's post-disqualification.
The Commission on Elections (Comelec) officials who were the subject of the complaint include Jeannie V. Flororita (Director 4, IT department), Allen Francis B. Abaya (chairman, SBAC), John Rex C. Laudiangco (vice chairman, SBAC); Jovencio G. Balinguit, Divina E. Blas Perez, Abigail Claire F. Carbero Llacuna (members, SBAC); and unnamed members of the technical working group (TWG).
Perceived flaws of complaint
My fearless forecast is that the complaint will not prosper and will simply be swept under the rug, so to speak.
First off, the complaint was filed before the SBAC itself, asking the SBAC to issue a resolution to reverse itself. Much more, it is asking the SBAC to administratively penalize no less than its chairman, vice chairman and other members. In my personal experience as a lawyer and litigator, no tribunal (or quasi-judicial body like the SBAC) would reverse itself and censure its own members. Following the hierarchy of courts (which also applies to tribunals and quasi-judicial bodies) the complaint should have been filed before the next higher level. In this case, the head of the procuring entity (HoPE), which in this case would be the Comelec en banc.
Second, nothing can stop the award of a publicly bid project other than the filing of a protest. The protest mechanism is governed by Rule XVII of the implementing rules and regulations (IRR) of Republic Act 9184. Take note that a protest is perfected by filing a verified position paper with the HoPE concerned and the payment of a non-refundable protest fee. For this particular project, the protest fee stands at P2.5 million.
This is just my legal opinion. Well, miracles may happen. The SBAC may still reconsider its actions - if hell freezes over.
Notice of award
It has to be noted that Section 37 of the IRR directs that "in no case shall the request for reconsideration stay or delay the bidding process. However, the request for reconsideration must first be resolved before any award is made."
For everyone's information, a notice of award (NoA) has already been issued to, and accepted by, Smartmatic on May 14, 2021. It was signed by Comelec Chairman Sheriff M. Abas and accepted by Smartmatic's authorized representative, Filipinas Ordoño.
The NoA states, "On behalf of the Commission en banc, the undersigned hereby awards to SMMT-TIM 2016, INC. the Contract for the Vote Counting Machines (VCMs) Refurbishment with Consumables - 2nd Bidding under SBAC Reference No. 01-2020VCMRC."
The award is for the refurbishment of 97,345 units of VCMs, 109,745 pieces of Main SD Cards, 109,745 pieces of Back-up WORM SD Cards, and 250,000 pieces of cleaning sheets. The total contract price for the lot was P637,433,308.45.
Following the logic of the said Section 37, since a NoA had already been issued to Smartmatic on May 14, 2021, it can be concluded that there is no pending request for reconsideration or unresolved protest on hand. The complaint, dated May 5, 2021, and filed prior to May 14, 2021, could be considered denied as of this time.
The head and assistant head of the SBAC-TWG are lawyers John Gerald B. de la Cruz and Marissa Corazon T. Nefalar, respectively.
The designated members of the SBAC-TWG, coming from the offices of the various commissioners, are Sitty Sarah Mangotara-Andig, Marlena Pagalilauan, Marianne Grace C. Felix, lawyer Mark Nichol Malinao, Jenno Fred Villarino, Jonathan Casquejo and Charis Althea M. Tobias.
The other members of the SBAC-TWG, who were not named in the complaint, are lawyer Nicole Kay C. James, lawyer Dindo Maglasang, lawyer Glinis Tamondong, Danilo Cartagena, Emerito Tuscano, Cristopher Jess Chavez, Juanito D. Magno II, Franza Yrolle Veracion-Tablante and Cristina L. Morano.
Technical issue with repercussions
The sole technical issue involved in the complaint is that of a WORM SD card (write once read any secure digital card). However, the concerns brought up by the PII and PSI joint venture concerning this SD card carry with them a multitude of technical and legal repercussions. I will be discussing these things next week.
Finally, the foreign joint venture may still file criminal and administrative cases against these public officials before the Office of the Ombudsman and/or the Department of Justice. They may likewise file a petition before the Supreme Court to annul the decision of the Comelec.
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