The Philippine Computer Society (PCS) stated in their letter to the Bids and Awards Committee (BAC) of Comelec that “The BAC has no choice but to declare Smartmatic ineligible based on your own rules.”
The PCS letter, dated December 16, 2014, was signed by its President, Mr. Leo Querubin, and it was addressed and acknowledged by the BAC Chairperson, Ms. Helen G. Aguila-Flores. Said letter was initiated because the BAC decided during the opening of bids on December 15, 2014, that Smartmatic passed the eligibility requirements when in fact it did not! Quoting the news articles, Ms. Flores said, “We are deciding as a committee, as a whole. For Smartmatic, this is our decision, we find Smartmatic eligible on majority vote of 3-2. For Indra, unanimously we find Indra eligible.”
So what were the BAC rules that should automatically declare Smartmatic ineligible?
• Rule 1 from Clause 24.1 of Section 2 of the COMELEC issued bid documents, states:
The BAC shall open the first bid envelopes (eligibility documents) of Bidders in public . . . to determine each Bidder’s compliance with the documents prescribed in ITB Clause 12. . .the BAC shall check the submitted documents of each bidder against a checklist of required documents to ascertain if they are all present, using a non-discretionary pass/fail criterion. If a bidder submits the required document, it shall be rated as pass for that particular requirement. . . bids that fail to include any requirement or are incomplete. . . shall be considered as failed. Otherwise, the BAC shall rate the said first bid envelope as passed.
• Rule 2 from Clause 19.3 of Section 2 of the COMELEC issued bid documents states:
The Bidder shall prepare and submit an original of the first and second envelopes as described in ITB Clauses 12 and 13. In the event of any discrepancy between the original and the copies, the original shall prevail.
In the above rules, since Smartmatic failed to include the Tax Clearance Certificate (TCC) of Jarltech in the original set of documents, the BAC should have rated the said vendor as failed even if the TCC is present in other copies. The BAC should have not gone through voting as the rule states that they should use a non-discretionary pass/fail criterion. Nothing was mentioned about voting. That’s very clear!
Furthermore, PCS noted that the Articles of Incorporation (AOI) of Smartmatic-TIM states that the sole purpose of the organization is “for the automation of the 2010 national and local elections.” Even an ordinary person would interpret that the AOI is simply for 2010 and not even for 2013 and 2016 national and local elections. Four years passed and Smartmatic did not amend their AOI and such incompetence for not doing due diligence was manifested in their project implementation of automated election system (AES) in 2010 and 2013 and in ignoring the laws of the land such as RA 9184, RA 9369, and RA 8792.
With such consistent pattern of Smartmatic’s behavior, we could predict that our elections in 2016 would suffer the same fate in 2010 and 2013 if Smartmatic would still RULE the land.
Same is true on the part of Comelec, the lack of agency plan led them to award the first P300 Million (i.e., out of the P1.2 Billion budget) to Smartmatic hastily for the “Program 1” (i.e., first part of an extended warranty) that involves the examination, diagnostics, and some minor repairs of PCOS machines based on Comelec Resolution No. 9922. However, quoting what Comelec’s Legal Deparment Head, Director Esmeralda Ladra, said last month, “It behooves upon us to ensure that this Extension of Warranty for the repair and maintenance of PCOS machines, which is a clear example of direct contracting or single source procurement, be made to undergo the tests of validity under R.A. 9184.” They had a year to procure the services! Now, they are hurrying up as they are claiming that postponing the repairs might cause delays in the Comelec’s preparations for 2016 elections. Best move here by Comelec is to ask the following:
1. How many PCOS machines are defective? How many need recalibration? Timeframe?
2. What’s the lead time to order the spare parts?
3. How many technicians needed?
4. How much is the total cost?
5. Will the above take six months to finish? . . . Yes! Then the latest time to award the contract should be in November 2015. Let the new Chairman of Comelec handle this issue and please respect the internal legal minds of Comelec’s Legal Department.
This month, let’s join the inter-faith multi-sectoral Occupy Comelec Movement for a month long prayer camp-out at Manila Cathedral’s Plaza Roma. Using tarpaulins, you may display your important messages/prayers for Comelec.
Smartmatic, you are ineligible! Give Peace instead to our Land!