Forced to use PCOS again by ‘time constraints’

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IN announcing that the Commission on Elections (Comelec) will lease all new PCOS machines from supplier Smartmatic-TIM Corporation, Comelec Chairman Andres Bautista explained that using the existing PCOS machines for the 2016 National and Local Elections was no longer an option mainly because of time constraints.

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While agreeing with Chairman Bautista, Commissioner Rowena Guanzon opined, “What is further deplorable in this whole state of affairs is that Smartmatic seemed to have taken advantage of the time constraint the Commission is confronted with.”

Lack of time has become the Comelec mantra when making decisions at the last minute. The thing is, the Comelec is quite fully aware that elections are held every three years. The Comelec effectively has three years to prepare for each national and local elections.

Let’s look at a chronology of significant events relating to the Comelec’s preparation for the 2016 National and Local Elections:

November 13, 2013 – Comelec records would show that it received from Smartmatic-TIM Corporation a proposal for the Extended Warranty on or around this date.

March 27, 2014 – Twenty-six months prior to the May 9, 2016 National and Local Elections the 2016 Comelec Advisory Council was organized. The CAC is tasked under the law to assist the Comelec and provide recommendations on the technology to be used for the elections and to prepare a report on the automated election system used for the elections to be submitted to the Joint Congressional Oversight Committee on the Automated Election Systems.

August 13, 2014 – The CAC issued Resolution Number 2014-002 recommending the re-use of the existing stock of PCOS machines “provided that the existing machines be subjected to rigorous quality assurance and testing processes” and “provided further, that the security features and minimum system capabilities required under RA9369, including those defined in the Request for Proposal for the Automation of the 2010 National and Local Elections be fully and properly implemented.”

October 30, 2014 – Smartmatic-TIM Corporation’s November, 2013 proposal for the Extended Warranty of the existing PCOS stock was referred to the Law Department.

November 4, 2014 – The Comelec Law Department advised against getting into a negotiated contract and advised that Smartmatic-TIM Corporation should instead fulfil its obligation of training the IT Department personnel.

December 23, 2014 – Comelec En Banc approved Resolution No. 9922 which allowed the Comelec to resort to alternative procurement or negotiated contract citing lack of time. Those who approved of the resolution were former Comelec Chairman Sixto Brillantes, former Commissioners LecenitoTagle and Elias Yusoph, and incumbent Commissioners Robert Lime and Al Parreño. Incumbent Commissioners Louie Tito Guia and Arthur Lim dissented.

January 30, 2015 – A negotiated contract for the repair and refurbishment of the existing PCOS stock was signed with Smartmatic-TIM just a few days before Comelec Chairman Brillantes was set to retire.

February 2, 2015 – Comelec Chairman Brillantes and two other Commissioners retire. Chairman Brillantes was quoted to have said, “The contract has not been signed but they kept on attacking us so I signed it. Now, I dare all of them to bring it up to the highest court of this land and I will fight for it up to the end.”

March 24, 2015 – The Supreme Court issued a temporary restraining order and enjoined the implementation of the extended warranty contract. The Supreme Court said in part, “The services of repair and refurbishment cannot be procured from Smartmatic-TIM through an ‘extended warranty’ mode, unless this Court assents to a blatant circumvention of the procurement law.”

June 30, 2015 – Bidding for the repair and refurbishment of 81,869 PCOS machines fails.

July 30, 2015 – Comelec announced that it will award the P1.7 billion lease contract for 23,000 new PCOS machines to Smartmatic-TIM.

August 1, 2015 – Second bidding for the repair and refurbishment of 81,869 PCOS machines fails.

August 13, 2015 – Comelec announced that it will use all new PCOS machines for the 2016 elections and the option to have the existing 81,869 PCOS machines repaired and refurbished no longer feasible due to time constraints.

The Smartmatic-TIM Extended Warranty proposal was submitted on November 13, 2013 and a negotiated contract was signed after 443 days. The reason given for the negotiated contract was the lack of time!

The Comelec’s program to bid out the repair and refurbishment of existing PCOS machines was destined to fail given that there were two other bids for the supply/lease of 93,977 new PCOS machines. Certainly, the supply of new PCOS machines was more financially attractive.

“Lack of time” has been forced upon the current set of Commissioners and the Filipino voters. The country will once again use an election technology that has been assailed for its many deficiencies. Even if its deficiencies were corrected, it will remain to be a non-transparent system.

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7 Comments

  1. Vic Penetrante on

    What if children reason out to their parents that they failed in school because of ‘time constraint’? Parents would surely answer: Yes, you provided yourself more time for leisure than your studies!
    All government offices seem to have no time schedule, only time constraint.

  2. In hindsight, if the Supreme Court did not rule against the original direct contract deal via an Extended Warranty offered by Smartmatic during Brillantes Comelec,we find out that this was the best deal for the taxpayers. This deal is valued at P2B versus the latest bid offer price of P3B based on the second failed bid, a P1B savings with ample time to refurbish, upgrade, delivery and test the units.

    The Supreme Court is an interesting case law. I disagree with the decision and this is why. The lawyers of the Integrated Bar of the Philippines was able to convinced the justices that the said contract was of “service nature” and therefore as such, no one has proprietary rights over them. Had the contract been classified as a system with hardware and software components which has protection of intellectual property, then it would have passed the exemption to public bidding under the Alternative Modes of Procurement, as Comelec has prescribed.

    This is a case of literally it could go either way depending on the prudency of assumptions made. Let’s look at it with a practical view, Smartmatic is the manufacturer of the PCOS machines and claims it has a hardware component which they have a patent on and they have the software which is protected by intellectual property laws. The rest of the components can be bought readily in the market. A bidder other than Smartmatic will find it very hard to beat Smartmatic’s pricing only because this patented component of Smartmatic can only be bought from them or they could try and replicate it through reverse engineering which will be costly and risky technical options. So there is the math!

    The primary goal of the Government Procurement Law is for government to able to fetch the best price in a fair play, healthy competition environment through competitive public biddings. When this is lacking or not available, the government can resort to alternative modes of procurement which was the case as Brillantes Comelec have contemplated and executed. Unfortunately because of a flawed SC ruling, we find out the hard way that the best price for the contract deal was the original extended warranty through direct contracting with Smartmatic as now revealed by the pricing of the offers.

  3. Brian Maglutac on

    Watched a clip of Ex-Chair Brillantes and he explains it this way. Smartmatic offered a proposal to diagnose, repair and refurbish through an Extended Warranty contract at around the end of 2013. Negotiations, legal work and consultations took most of 2014 before finally coming out with an En Banc resolution to do direct contracting with Smartmatic based on among other things, lack of time and exemption from public bidding due to “proprietary or intellectual property” nature of the PCOS machines. After the P260M contract was signed in January 2013, work on the diagnostics part had commenced. Then AESWatch and IBP files a complaint before the Supreme Court and then issues a TRO, work was immediately stopped. Later SC declares said contract as null and void and directs Comelec to put it for public bidding. Comelec put the refurbishment contract up for bid but in the last minute because of new Commissioner Guanzon’s prodding slashes the contract price by some P800M to around P2B, the bid fails as there were no takers. Obviously, reducing the contract price was a mistake done by a rookie trying to show her wit or the lack thereof! Realizing this mistake, Comelec corrects it by upping the contract price by P1B for the second bidding but it came in a little too late as there is no more time to fulfill the contract delivery schedule. One bidder showed up but was disqualified.

    Lessons to be learn:

    1. Start early, study the requirements, legalities and the pricing of the contract carefully.
    2. Always anticipated lawsuits from the usual suspects, AESWatch, Gus Lagman, “wise” bishops, et al.
    3. Ignore the media and their paid hacks that only peddles sensationalism for profit.
    4. Beware of “sad” commissioners who tries to cover up her mistakes by deflect the blame on others!

  4. jesus nazario on

    Come to think of it, Lito, the word “forced” has a very forceful meaning. Even in Newton’s world the word “force” engendered 3 laws of motion which stays relevant even today in our day-to-day lives updated only by Einstein’s. Anyway, in the context of your use of the word, it connotes that a certain external (foreign or local) force forced Comelec to capitulate kahit mabigat sa loob ng 4 out of 7 members of the en banc and just acquire new PCOS (ah OIS na pala – Optical Illusion System) units instead of rehabilitate (there is no such word yata as refurbishment) the 81,000+ old units which have only been used for less than 1% of their lives so far.

    Who, what, where is the source of this force ? It is surely not gravity, electromagnetic, astral or anything similar.

    • And the answer is…MARKET FORCES. There are four vendors that bought bid documents and participated in an open competitive public bidding, Smartmatic, Indra, Dermalog, Vertex.

      And the winner is…Smartmatic. Fair and square, period!

      It baffles me that when the gov’t bids much larger infrastructure projects ten times this amount and the big Filipino conglomerates like Ayala, San Miguel and Metro Pacific are the bidders, there are no AESWatch, Cenpeg, C3E, Gus Lagman, Glen Chong, rebel bishops, that files lawsuits against them and discredit them with lies in the media. So I’ve come to the conclusion that these groups either have some vested interests in the project itself, there are scared of the Philippine bigwigs and a foreign bidder is a better, easier prey or just plain sour graping losers who just want to get their way or the highway.

      You must be a physicist because you have a very wild imagination.

  5. The Comelec did not have the people to plan for the needs in the upcoming 2016 elections. They did not have anyone capable of negotiating with suppliers, organizing the election, or planning what they need. If 3 years is not enough time to get it right, then 10 years is also not enough time. We need to have experienced business people in the Comelec. Get rid of the political hacks and lawyers who don’t understand the job or just do things for their self-interest..

    • Are you referring to Commissioner Rowena Guanzon who just three months on the job prods the Bid And Awards Committee to lower the Approved Budget of Contract by some P800M causing the first bidding for refurbishment to be declared as a failed bid since there were no takers. Had she not meddled into the contract pricing, the bidding could have succeeded and we would have refurbished PCOS instead of brand new ones and saved a lot of money. Guess feeling guilty of her booboo, she deflects the blame on Smartmatic and the previous Comelec leadership for its “sad” predicament. Using words such as “our hands were tied”, “we were forced” and “not of our own making”, A typical politician!