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G.R. No. 159139. January 13, 2004
Information Technology Foundation of the
Philippines, et al. v. Commission on Elections, et al.
EN BANC
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ,
AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO and
MANUEL ALCUAZ JR., petitioners, vs. COMMISSION ON ELECTIONS; COMELEC
CHAIR BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA
PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM, respondents.
D E C I S I O N
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an
act is done contrary to the Constitution, the law or jurisprudence;1 [1]
or (2) when it is executed whimsically, capriciously or arbitrarily
out of malice, ill will or personal bias.2 [2] In the
present case, the Commission on Elections approved the assailed
Resolution and awarded the subject Contract not only in clear
violation of law and jurisprudence, but also in reckless disregard
of its own bidding rules and procedure. For the automation of
the counting and canvassing of the ballots in the 2004 election,
Comelec awarded the Contract to “Mega Pacific Consortium” an
entity that had not participated in the bidding. Despite this
grant, the poll body signed the actual automation Contract with
“Mega Pacific eSolutions Inc.,” a company that joined the
bidding but had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking
with inexplicable haste, without adequately checking and observing
mandatory financial, technical and legal requirements. It also
accepted the proferred computer hardware and software even if, at
the time of the award, they had undeniably failed to pass eight
critical requirements designed to safeguard the integrity of
election, especially the following three items:
• They failed to achieve the accuracy rating
criteria of 99.9995 percent set-up by the Comelec itself
• They were not able to detect previously
downloaded results at various canvassing or consolidation levels and
to prevent these from being inputted again
• They were unable to print the statutorily
required audit trails of the count/canvass at different levels
without any loss of data
Because of the foregoing violations of law and
the glaring grave abuse of discretion committed by Comelec, the
Court has no choice but to eaqxercise its solemn “constitutional
duty”3 [3] to void the assailed Resolution and the subject
Contract. The illegal, imprudent and hasty actions of the
Commission have not only desecrated legal and jurisprudential norms,
but have also cast serious doubts upon the poll body’s ability and
capacity to conduct automated elections. Truly, the pith
and soul of democracy—credible, orderly, and peaceful
elections—has been put in jeopardy by the illegal and gravely
abusive acts of Comelec.
The case
Before us is a Petition4 [4] under Rule 65
of the Rules of Court, seeking (1) to declare null and void
Resolution No. 6074 of the Commission on Elections (Comelec), which
awarded “Phase II of the Modernization Project of the Commission
to Mega Pacific Consortium (MPC);” (2) to enjoin the
implementation of any further contract that may have been entered
into by Comelec “either with Mega Pacific Consortium and/or Mega
Pacific eSolutions Inc. (mpei);” and (3) to compel Comelec to
conduct a rebidding of the project.
The Facts
The following facts are not disputed. They
were culled from official documents, the parties’ pleadings, as
well as from admissions during the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act
8046,5 [5] which authorized Comelec to conduct a nationwide
demonstration of a computerized election system and allowed the poll
body to pilot-test the system in the March 1996 election in the
Autonomous Region in Muslim Mindanao (armm).
On December 22, 1997, Congress enacted Republic
Act 84366 [6] authorizing Comelec to use an automated election
system (AES) for the process of voting, counting votes and
canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated
counting machines (ACMs), computer equipment, devices and materials;
and to adopt new electoral forms and printing materials.
Initially intending to implement the automation
during the May 11, 1998-presidential elections, Comelec—in its
Resolution No. 2985 dated February 9, 19987 [7]— eventually
decided against full national implementation and limited the
automation to the Autonomous Region in Muslim Mindanao (armm).
However, due to the failure of the machines to read correctly some
automated ballots in one town, the poll body later ordered their
manual count for the entire Province of Sulu.8 [8]
In the May 2001 election, the counting and
canvassing of votes for both national and local positions were also
done manually, as no additional ACMs had been acquired for that
electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its
Resolution 02-0170 a modernization program for the 2004 election. It
resolved to conduct biddings for the three (3) phases of its
Automated Election System; namely, Phase I - Voter Registration and
Validation System; Phase II - Automated Counting and Canvassing
System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo
issued Executive Order No. 172, which allocated the sum of P2.5
billion to fund the AES for the May 10, 2004 election. Upon the
request of Comelec, she authorize the release of an additional P500
million.
On January 28, 2003, the Commission issued an
“Invitation to Apply for Eligibility and to Bid,” which we quote
as follows:
“Invitation to apply
for eligibility and to bid
The Commission on Elections (Comelec), pursuant
to the mandate of Republic Act Nos. 8189 and 8436, invites
interested offerors, vendors, suppliers or lessors to apply for
eligibility and to bid for the procurement by purchase, lease, lease
with option to purchase, or otherwise, supplies, equipment,
materials and services needed for a comprehensive Automated Election
System, consisting of three (3) phases: (a)
registration/verification of voters, (b) automated counting and
consolidation of votes, and (c) electronic transmission of
election results, with an approved budget of two billion five
hundred million (Php2,500,000,000) pesos.
Only bids from the following entities shall be
entertained:
a. Duly licensed Filipino
citizens/proprietorships;
b. Partnerships duly organized under the laws of
the Philippines and of which at least sixty percent (60%) of the
interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of
the Philippines, and of which at least sixty percent (60%) of the
outstanding capital stock belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors
forming themselves into a joint venture, i.e., a group of two (2) or
more manufacturers, suppliers and/or distributors that intend to be
jointly and severally responsible or liable for a particular
contract, provided that Filipino ownership thereof shall be at least
sixty percent (60%); and
e. Cooperatives duly registered with the
Cooperatives Development Authority.
Bid documents for the three (3) phases may be
obtained starting February 10, 2003, during office hours from the
Bids and Awards Committee (BAC) Secretariat/Office of Commissioner
Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros,
Manila, upon payment at the Cash Division, Commission on Elections,
in cash or cashier’s check, payable to the Commission on
Elections, of a non-refundable amount of fifteen thousand pesos
(Php15,000.00) for each phase. For this purpose, interested
offerors, vendors, suppliers or lessors have the option to
participate in any or all of the three (3) phases of the
comprehensive Automated Election System.
A Pre-Bid Conference is scheduled on
February 13, 2003, at 9:00 a.m. at the Session Hall, Commission on
Elections, Postigo Street, Intramuros, Manila. Should there be
questions on the bid documents, bidders are required to submit their
queries in writing to the BAC Secretariat prior to the scheduled
Pre-Bid Conference.
Deadline for submission to the BAC of
applications for eligibility and bid envelopes for the supply of the
comprehensive Automated Election System shall be at the Session
Hall, Commission on Elections, Postigo Street, Intramuros, Manila on
February 28, 2003 at 9:00 a.m.
The Comelec reserves the right to review the
qualifications of the bidders after the bidding and before the
contract is executed. Should such review uncover any
misrepresentation made in the eligibility statements, or any changes
in the situation of the bidder to materially downgrade the substance
of such statements, the Comelec shall disqualify the bidder upon due
notice without any obligation whatsoever for any expenses or losses
that may be incurred by it in the preparation of its bid.”9 [9]
On February 11, 2003, Comelec issued Resolution
No. 5929 clarifying certain eligibility criteria for bidders and the
schedule of activities for the project bidding, as follows:
“1.)Open to Filipino and foreign corporation
duly registered and licensed to do business and is actually doing
business in the Philippines, subject to Section 43 of Republic Act
9184 (An Act providing In the modernization standardization and
regulation of the procurement activities of the Government and for
other purposes etc.)
2.) Track Record:
a) For counting machines—should have been used
in at least one (1) political exercise with no less than twenty
million Voters;
b) For verification of voters—the reference
site of an existing data base installation using Automated
Fingerprint Identification System (afis) with at least twenty
million.
3.)Ten percent (10%) equity requirement shall be
based on the total project cost; and
4.)Performance bond shall be twenty percent
(20%) of the bid offer.
Resolved moreover, that:
1) A. Due to the decision that the
eligibility requirements and the rest of the Bid documents shall be
released at the same time, and the memorandum of Commissioner
Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003, at 2:00 p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent
documents;
B. Pre-Bid conference shall be on February
18, 2003; and
C. Deadline for the submission and receipt
of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be
available at the following offices:
a) Voters Validation: Office of Commissioner
Javier
b) Automated Counting Machines: Office of
Commissioner Borra
c) Electronic Transmission: Office of
Commissioner Tancangco”10 [10]
On February 17, 2003, the poll body released the
Request for Proposal (RFP) to procure the election automation
machines. The Bids and Awards Committee (BAC) of Comelec
convened a pre-bid conference on February 18, 2003, and gave
prospective bidders until March 10, 2003, to submit their respective
bids.
Among others, the RFP provided that bids from
manufacturers, suppliers and/or distributors forming themselves into
a joint venture may be entertained, provided that the Philippine
ownership thereof shall be at least 60 percent. Joint venture
is defined in the RFP as “a group of two or more manufacturers,
suppliers and/or distributors that intend to be jointly and
severally responsible or liable for a particular contract.”11 [11]
Basically, the public bidding was to be
conducted under a two-envelope/two stage system. The
bidder’s first envelope or the Eligibility Envelope should
establish the bidder’s eligibility to bid and its qualifications
to perform the acts if accepted. On the other hand, the second
envelope would be the Bid Envelope itself. The RFP outlines
the bidding procedures as follows:
“25. Determination of Eligibility of
Prospective Bidders
“25.1 The eligibility envelopes of prospective
Bidders shall be opened first to determine their eligibility. In
case any of the requirements specified in Clause 20 is missing from
the first bid envelope, the BAC shall declare said prospective
Bidder as ineligible to bid. Bid envelopes of ineligible
Bidders shall be immediately returned unopened.
“25.2 The eligibility of prospective Bidders
shall be determined using simple ‘pass/fail’ criteria and shall
be determined as either eligible or ineligible. If the
prospective Bidder is rated ‘passed’ for all the legal,
technical and financial requirements, he shall be considered
eligible. If the prospective Bidder is rated ‘failed’ in
any of the requirements, he shall be considered ineligible.
“26.Bid Examination/Evaluation
“26.1 The BAC will examine the Bids to
determine whether they are complete, whether any computational
errors have been made, whether required securities have been
furnished, whether the documents have been properly signed, and
whether the Bids are generally in order.
“26.2 The BAC shall check the submitted
documents of each Bidder against the required documents enumerated
under Clause 20, to ascertain if they are all present in the Second
bid envelope (Technical Envelope). In case one (1) or more of
the required documents is missing, the BAC shall rate the Bid
concerned as ‘failed’ and immediately return to the Bidder its
Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC
shall rate the first bid envelope as ‘passed.’
“26.3 The BAC shall immediately open the
Financial Envelopes of the Bidders whose Technical Envelopes were
passed or rated on or above the passing score. Only Bids that
are determined to contain all the bid requirements for both
components shall be rated ‘passed’ and shall immediately be
considered for evaluation and comparison.
“26.4 In the opening and examination of the
Financial Envelope, the BAC shall announce and tabulate the Total
Bid Price as calculated. Arithmetical errors will be rectified on
the following basis: If there is a discrepancy between words and
figures, the amount in words will prevail. If there is a
discrepancy between the unit price and the total price that is
obtained by multiplying the unit price and the quantity, the unit
price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid
Price and the sum of the total prices, the sum of the total prices
prevail and the Total Bid Price shall be corrected accordingly.
“26.5 Financial Proposals which do not clearly
state the Total Bid Price shall be rejected. Also, Total Bid
Price as calculated that exceeds the approved budget for the
contract shall also be rejected.
27. Comparison of Bids
27.1The bid price shall be deemed to embrace all
costs, charges and fees associated with carrying out all the
elements of the proposed Contract, including but not limited to,
license fees, freight charges and taxes.
27.2The BAC shall establish the calculated
prices of all Bids rated ‘passed’ and rank the same in ascending
order.
x x x
x x x x x x
“29. Postqualification
“29.1 The BAC will determine to its
satisfaction whether the Bidder selected as having submitted the
lowest calculated bid is qualified to satisfactorily perform the
Contract.
“29.2 The determination will take into account
the Bidder’s financial, technical and production
capabilities/resources. It will be based upon an examination
of the documentary evidence of the Bidder’s qualification
submitted by the Bidder as well as such other information as the BAC
deems necessary and appropriate.
“29.3 A bid determined as not substantially
responsive will be rejected by the BAC and may not subsequently be
made responsive by the Bidder by correction of the nonconformity.
“29.4 The BAC may waive any informality or
nonconformity or irregularity in a bid which does not constitute a
material deviation, provided such waiver does not prejudice or
affect the relative ranking of any Bidder.
“29.5 Should the BAC find that the Bidder
complies with the legal, financial and technical requirements, it
shall make an affirmative determination which shall be a
prerequisite for award of the Contract to the Bidder.
Otherwise, it will make a negative determination which will result
in rejection of the Bidder’s bid, in which event the BAC will
proceed to the next lowest calculated bid to make a similar
determination of that Bidder’s capabilities to perform
satisfactorily.”12 [12]
Out of the 57 bidders,13 [13] the BAC found
MPC and the Total Information Management Corp. (timc) eligible.
For technical evaluation, they were referred to the BAC’s
Technical Working Group (TWG) and the Department of Science and
Technology (dost).
In its Report on the Evaluation of the Technical
Proposals on Phase II, dost said that both MPC and timc had obtained
a number of failed marks in the technical evaluation.
Notwithstanding these failures, Comelec en banc, on April 15, 2003,
promulgated Resolution No. 6074 awarding the project to MPC. The
Commission publicized this Resolution and the award of the project
to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities
(including the herein Petitioners Information Technology Foundation
of the Philippines, represented by its president, Alfredo M. Torres;
and Ma. Corazon Akol) wrote a letter14 [14] to Comelec Chair
Benjamin Abalos Sr. They protested the award of the Contract to
Respondent MPC “due to glaring irregularities in the manner in
which the bidding process had been conducted.” Citing therein the
noncompliance with eligibility as well as technical and procedural
requirements (many of which have been discussed at length in the
Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003,15 [15]
the Comelec chairman—speaking through Atty. Jaime Paz, his head
executive assistant—rejected the protest and declared that the
award “would stand up to the strictest scrutiny.”
Hence, the present Petition.16 [16]
The issues
In their Memorandum, petitioners raise the following issues for our
consideration:
“1.The Comelec awarded and contracted with a
non-eligible entity; x x x
“2.Private respondents failed to pass the
Technical Test as required in the RFP. Notwithstanding, such failure
was ignored. In effect, the Comelec changed the rules after the
bidding in effect changing the nature of the contract bidded upon.
“3.Petitioners have locus standi.
“4.Instant Petition is not premature. Direct
resort to the Supreme Court is justified.”17 [17]
In the main, the substantive issue is whether
the Commission on Elections, the agency vested with the exclusive
constitutional mandate to oversee elections, gravely abused its
discretion when, in the exercise of its administrative functions, it
awarded to MPC the contract for the second phase of the
comprehensive Automated Election System.
Before discussing the validity of the award to
MPC, however, we deem it proper to first pass upon the procedural
issues: the legal standing of petitioners and the alleged
prematurity of the Petition.
This Court’s ruling
The Petition is meritorious.
First procedural issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not
possess locus standi, inasmuch as they are not challenging the
validity or constitutionality of R.A. 8436. Moreover,
petitioners supposedly admitted during the Oral Argument that no law
had been violated by the award of the Contract. Furthermore,
they allegedly have no actual and material interest in the Contract
and, hence, do not stand to be injured or prejudiced on account of
the award.
On the other hand, petitioners—suing in their
capacities as taxpayers, registered voters and concerned
citizens—respond that the issues central to this case are “of
transcendental importance and of national interest.” Allegedly,
Comelec’s flawed bidding and questionable award of the Contract to
an unqualified entity would impact directly on the success or the
failure of the electoral process. Thus, any taint on the
sanctity of the ballot as the expression of the will of the people
would inevitably affect their faith in the democratic system of
government. Petitioners further argue that the award of any
contract for automation involves disbursement of public funds in
gargantuan amounts; therefore, public interest requires that the
laws governing the transaction must be followed strictly.
We agree with petitioners. Our nation’s
political and economic future virtually hangs in the balance,
pending the outcome of the 2004 election. Hence, there can be no
serious doubt that the subject matter of this case is “a matter of
public concern and imbued with public interest”;18 [18] in
other words, it is of “paramount public interest”19 [19]
and “transcendental importance.”20 [20] This fact
alone would justify relaxing the rule on legal standing, following
the liberal policy of this Court whenever a case involves “an
issue of overarching significance to our
society.”21 [21] Petitioners’ legal standing should
therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are
allowed to sue when there is a claim of “illegal disbursement of
public funds,”22 [22] or if public money is being
“deflected to any improper purpose”;23 [23] or when
petitioners seek to restrain respondent from “wasting public funds
through the enforcement of an invalid or unconstitutional
law.”24 [24] In the instant case, individual
petitioners, suing as taxpayers, assert a material interest in
seeing to it that public funds are properly and lawfully used.
In the Petition, they claim that the bidding was defective, the
winning bidder not a qualified entity, and the award of the Contract
contrary to law and regulation. Accordingly, they seek to
restrain respondents from implementing the Contract and,
necessarily, from making any unwarranted expenditure of public funds
pursuant thereto. Thus, we hold that petitioners possess locus
standi.
Second procedural issue:
Alleged prematurity due to non-exhaustion of
administrative remedies
Respondents claim that petitioners acted
prematurely, since they had not first utilized the protest mechanism
available to them under R.A. 9184, the Government Procurement Reform
Act, for the settlement of disputes pertaining to procurement
contracts.
Section 55 of R.A. 9184 states that protests
against decisions of the Bidding and Awards Committee in all stages
of procurement may be lodged with the head of the procuring entity
by filing a verified position paper and paying a protest fee.
Section 57 of the same law mandates that in no case shall any such
protest stay or delay the bidding process, but it must first be
resolved before any award is made.
On the other hand, Section 58 provides that
court action may be resorted to only after the protests contemplated
by the statute shall have been completed. Cases filed in
violation of this process are to be dismissed for lack of
jurisdiction. Regional trial courts shall have jurisdiction
over final decisions of the head of the procuring entity, and court
actions shall be instituted pursuant to Rule 65 of the 1997 Rules of
Civil Procedure.
Respondents assert that throughout the bidding
process, petitioners never questioned the BAC Report finding MPC
eligible to bid and recommending the award of the Contract to it (MPC).
According to respondents, the Report should have been appealed to
the Comelc en banc, pursuant to the aforementioned sections of R.A.
9184. In the absence of such appeal, the determination and
recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc
Resolution No. 6074 dated April 15, 2003, awarding the project to
Respondent MPC even before the BAC managed to issue its written
report and recommendation on April 21, 2003. Thus, how could
petitioners have appealed the BAC’s recommendation or report to
the head of the procuring entity (the chairman of Comelec), when the
Comelec en banc had already approved the award of the contract to
MPC even before petitioners learned of the BAC recommendation?
It is claimed25 [25] by Comelec that during
its April 15, 2003, session, it received and approved the verbal
report and recommendation of the BAC for the award of the Contract
to MPC, and that the BAC subsequently reaffirmed its verbal report
and recommendation by submitting it in writing on April 21,
2003. Respondents insist that the law does not require that
the BAC Report be in writing before Comelec can act thereon;
therefore, there is allegedly nothing irregular about the Report as
well as the en banc Resolution.
However, it is obvious that petitioners could
have appealed the BAC’s report and recommendation to the head of
the procuring entity (the Comelec chair) only upon their discovery
thereof, which at the very earliest would have been on April 21,
2003, when the BAC actually put its report in writing and finally
released it. Even then, what would have been the use of
protesting/appealing the report to the Comelec chair, when by that
time the Commission en banc (including the chairman himself) had
already approved the BAC Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had
somehow gotten wind of the verbal BAC report on April 15, 2003
(immediately after the en banc session), at that point the
Commission en banc had already given its approval to the BAC Report
along with the award to MPC. To put it bluntly, the Comelec en
banc itself made it legally impossible for petitioners to avail
themselves of the administrative remedy that the Commission is so
impiously harping on. There is no doubt that they had not been
accorded the opportunity to avail themselves of the process provided
under Section 55 of R.A. 9184, according to which a protest against
a decision of the BAC may be filed with the head of the procuring
entity. Nemo tenetur ad impossible,26 [26] to borrow
private respondents’ favorite Latin excuse.27 [27]
Some observations on the BAC report to the
Comelec
We shall return to this issue of alleged
prematurity shortly, but at this interstice, we would just want to
put forward a few observations regarding the BAC Report and the
Comelec en banc’s approval thereof.
First, Comelec contends that there was nothing
unusual about the fact that the Report submitted by the BAC came
only after the former had already awarded the Contract, because the
latter had been asked to render its report and recommendation orally
during the Commission’s en banc session on April 15, 2003.
Accordingly, Comelec supposedly acted upon such oral recommendation
and approved the award to MPC on the same day, following which the
recommendation was subsequently reduced into writing on April 21,
2003. While not entirely outside the realm of the possible, this
interesting and unique spiel does not speak well of the process that
Comelec supposedly went through in making a critical decision with
respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the
shoes of the Honorable Commissioners would have been extremely
conscious of the overarching need for utter transparency. They
would have scrupulously avoided the slightest hint of impropriety,
preferring to maintain an exacting regularity in the performance of
their duties, instead of trying to break a speed record in the award
of multibillion-peso contracts. After all, between April 15
and April 21 were a mere six (6) days. Could Comelec not have
waited out six more days for the written report of the BAC, instead
of rushing pell-mell into the arms of MPC? Certainly,
respondents never cared to explain the nature of the Commission’s
dire need to act immediately without awaiting the formal, written
BAC Report.
In short, the Court finds it difficult to
reconcile the uncommon dispatch with which Comelec acted to approve
the multibillion-peso deal, with its claim of having been
impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on,
several other factors combine to lend negative credence to
Comelec’s tale.
Second, without necessarily ascribing any
premature malice or premeditation on the part of the Comelec
officials involved, it should nevertheless be conceded that this
cart-before-the-horse maneuver (awarding of the Contract ahead of
the BAC’s written report) would definitely serve as a clever and
effective way of averting and frustrating any impending protest
under Section 55.
Having made the foregoing observations, we now
go back to the question of exhausting administrative remedies.
Respondents may not have realized it, but the letter addressed to
Chair Benjamin Abalos Sr. dated May 29, 2003,28 [28] serves to
eliminate the prematurity issue as it was an actual written protest
against the decision of the poll body to award the Contract.
The letter was signed by/for, inter alia, two of herein petitioners:
the Information Technology Foundation of the Philippines,
represented by its president, Alfredo M. Torres; and Maria Corazon
Akol.
Such letter-protest is sufficient compliance
with the requirement to exhaust administrative remedies particularly
because it hews closely to the procedure outlined in Section 55 of
R.A. 9184.
And even without that May 29, 2003
letter-protest, the Court still holds that petitioners need not
exhaust administrative remedies in the light of Paat v. Court of
Appeals.29 [29] Paat enumerates the instances when the rule on
exhaustion of administrative remedies may be disregarded, as
follows:
“(1)when there is a violation of due process,
(2) when the issue involved is purely a
legal question,
(3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of
the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department
secretary whose acts as an alter ego of the President bears the
implied and assumed approval of the latter,
(7) when to require exhaustion of
administrative remedies would be unreasonable,
(8) when it would amount to a
nullification of a claim,
(9) when the subject matter is a private
land in land case proceedings,
(10)when the rule does not provide a plain,
speedy and adequate remedy, and
(11)when there are circumstances indicating the
urgency of judicial intervention.”30 [30]
The present controversy precisely falls within
the exceptions listed as Nos. 7, 10 and 11: “(7) when to require
exhaustion of administrative remedies would be unreasonable; (10)
when the rule does not provide a plain, speedy and adequate remedy,
and (11) when there are circumstances indicating the urgency of
judicial intervention.” As already stated, Comelec itself made the
exhaustion of administrative remedies legally impossible or, at the
very least, “unreasonable.”
In any event, the peculiar circumstances
surrounding the unconventional rendition of the BAC Report and the
precipitate awarding of the Contract by the Comelec en banc—plus
the fact that it was racing to have its Contract with MPC
implemented in time for the elections in May 2004 (barely four
months away)—have combined to bring about the urgent need for
judicial intervention, thus prompting this Court to dispense with
the procedural exhaustion of administrative remedies in this case.
Main substantive issue:
Validity of the award to MPC
We come now to the meat of the
controversy. Petitioners contend that the award is invalid,
since Comelec gravely abused its discretion when it did the
following:
1. Awarded the Contract to MPC though it did not
even participate in the bidding
2. Allowed MPEI to participate in the bidding
despite its failure to meet the mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003,
awarding the Contract to MPC despite the issuance by the BAC of its
Report, which formed the basis of the assailed Resolution, only on
April 21, 200331 [31]
4. Awarded the Contract, notwithstanding the
fact that during the bidding process, there were violations of the
mandatory requirements of R.A. 8436 as well as those set forth in
Comelec’s own Request for Proposal on the automated election
system | 
