AUTOMATION CONTRACTS

High Court absolves Comelec officials

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THE Supreme Court (SC) affirmed the ruling of former Ombudsman Merceditas Gutierrez absolving officials of the Commission on Elections (Comelec) in connection with the alleged anomalous procurement of automated counting machines (ACMs).

The court en banc found that the action taken by the Ombudsman “cannot be characterized as arbitrary, capricious, whimsical or despotic.”

It said the Ombudsman found no evidence to prove probable cause.

“Probable cause refers to facts and circumstances sufficient to engender a well-founded belief that a crime has been committed,” the court added.


In the case filed by the Information Technology Foundation of the Philippines (lnfotech) against the Comelec, the SC nullified the poll body’s award to Mega Pacific Consortium of the procurement contract involving ACMs for the 2004 national elections.

The SC found that the Comelec gravely abused its discretion when it awarded the contract to an entity that failed to establish itself as a proper consortium, and despite the ACMs’ failure to meet certain technical requirements.

On January 13, 2004, the SC promulgated the decision in lnfotech declaring as null and void Comelec Resolution No. 6074 which awarded the contract for Phase II of the Comprehensive Automated Electoral System to MPC and the procurement contract for ACMs executed between the Comelec and Mega Pacific eSolutions, Inc. (MPEI).

The court held that the Comelec’s failure to follow its own rules and guidelines on the bidding process, and to adequately check and observe financial, technical and legal requirements constituted grave abuse of discretion.

In particular, the high court found that the winning bidder, MPC, failed to include in its bid documents any joint venture or consortium agreement between MPEI, Election.com, Ltd., WeSolv Open Computing, Inc., SK C&C, ePLDT and Oracle System (Philippines), Inc. that would prove that MPC is a proper consortium.

Thus, it concluded that there was no documentary basis for the Comelec to determine that the alleged consortium really existed and was eligible and qualified to bid.

Furthermore, it found that the ACMs from MPC failed to meet the 99.9995-percent accuracy rating required in the Comelec’s own Request for Proposal (RFP).

Because of these lapses, the SC directed the Ombudsman to determine the criminal liability, if any, of the public officials and private individuals involved in the nullified resolution and contract.

In 2004, Sen. Aquilino Pimentel, Jr. also filed criminal and administrative complaints against Comelec Chairman Benjamin S. Abalos, Sr. and other Comelec officials with the Ombudsman.

In its supplemental resolution, the Ombudsman found that when the Comelec-BAC allowed MPC to bid, the public officials considered the numerous documents submitted by MPC to arrive at the conclusion, albeit erroneous, that MPC was eligible.

The Ombudsman also found that the Comelec had intended to test the final version of the software, but this plan was overtaken by thefiling and subsequent resolution of the Infotech case.

With respect to the bid itself, the Ombudsman found that MPC’s bid was the lowest and most responsive. It based these findings on the 12 public hearings conducted between July 13, 2006 and August 23, 2006.

Aggrieved by the Ombudsman’s reversal, the petitioners filed their special civil action for certiorari seeking to nullify the Ombudsman’s supplemental resolution and to cite the Ombudsman in contempt. In its June 6, 2017 ruling that was released just recently, the SC held that the Ombudsman was right when it handed down its verdict.

“Having ruled that the Ombudsman did not commit grave abuse of discretion, it is no longer necessary to belabor the issue on contempt. Suffice it to say that our directive to the Ombudsman was simply to determine if there was any criminal liability on the part of the public and private respondents,” it said.

“The Ombudsman’s determination of probable cause may only be assailed before this Court through the extraordinary remedy of certiorari. The requirement for judicial intrusion, however, is still for the petitioners to demonstrate clearly that the Ombudsman acted arbitrarily or despotically. Absent such clear demonstration, the intervention must be disallowed in deference to the doctrine of non-interference,” the court said.

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