Before signing a negotiated contract for the diagnostics, repair and refurbishment of the 82,000 PCOS machines, did Comelec engage in extensive study of third party maintenance (TPM) practices or consult with experts?
Did Comelec prepare a management plan to implement the corrective and preventive maintenance of the government-owned PCOS machines?
Did Comelec come to a conclusion that there’s no more time to refurbish the machines based on their gut feel? Do they have the necessary expertise to make such guesstimate?
To the Automation Election System (AES) Watch group, the common answer to the above questions is simply NO!
A TPM provider in the context of AES is any company who is offering an independent service outside of Smartmatic’s authorized service partners at a very much lower cost than that of P269 million.
In the Philippines, Third Party Maintenance became a very lucrative business in the 1980s. It became the cost-effective option of most large companies running mainframe computers. A mainframe computer has a central processing unit or CPU that could occupy the size of a classroom. And one of the TPM companies that emerged in the 1980s is the partner of Smartmatic; that is, the Total Information Management Corporation (TIM).
From the website of TIM (i.e.,http://www.timcorp.net/About), you would find the following statements: “Established in 1985, TIM started as a supplier of re-certified and re-furbished mainframes and peripherals equipment . . . TIM’s services portfolio now comprise of maintenance and engineering services . . . ”
Ironically, Cesar Flores, Smartmatic’s salesperson, argued that only Smartmatic has the sole authority to refurbish the PCOS machines for reuse in the 2016 presidential elections. Flores even threatened to sue Comelec if Smartmatic would not get the deal. Of course, Flores just hid the fact that their TIM partner started as a TPM provider who competed and won over its rival then, IBM Corporation, in the field of mainframe maintenance.
In a face-to-face with Flores in a hearing of the Joint Congressional Oversight Committee on AES last February 5, 2015, he was stunned when former Commissioner Gus Lagman mentioned about the history of TPM in the Country and TIM. He said, “As early as the 1960s…a new industry…sprouted and that is called third party maintenance companies. IBM objected because they didn’t want . . . any other company to maintain their mainframe computers . . . They lost and, all over the world, third party maintenance companies were allowed to maintain IBM computers . . . IBM was compelled to sell parts to these companies. So the talk about other companies or other people maintaining PCOS machines is not going to be allowed in their copyrights covering that is not true…By the way, the local partner of Smartmatic (TIM) does third party maintenance . . . Smartmatic was quoted . . . to have said that ‘Even Comelec can do it itself using these 80 technicians and some students.’ It’s not rocket science . . .”
Therefore, Smartmatic was wrong in holding an illogical premise about their TPM argument that only they have the authority to refurbish the PCOS machines! So what guts would Flores have to threaten Comelec about TPM?
Anyhow, Comelec conceded to Smartmatic’s threat when former Chairman Brillantes signed the Smartmatic contract on January 30, three days before his retirement on February 2, not through public bidding but through direct contracting or negotiated contract (i.e., RA 9184 Sec. 48). In support of such incredible move, Comelec also pronounced that there’s no more time as the AES preparation for 2016 would be delayed. But AES Watch and other organizations knew that there’s still time and the latest time to do the refurbishing is in November 2015. What was the basis of Comelec’s statement that there’s no more time?
For the two issues about TPM and lack of time, it is very clear that Comelec En Banc just refused to understand the technical intricacies of computers. Or were there other compelling reasons?
Meanwhile, Atty. Emerald Ladra was moved out on February 17 from being the Law Department Head of Comelec for coming out last December by with the weighty statement,“It behooves upon us to ensure that…the repair and maintenance of PCOS machines…be made to undergo the tests of validity under R.A. 9184.” We salute you Atty. Ladra for standing for “Matuwid na Daan.” You are a rare Tandang Sora of our time!
On February 19, news spread around that the Integrated Bar of the Philippines (IBP) filed a petition (https://dl.dropboxusercontent.com/u/85303072/AES%20Watch/IBP%20SC%20Petition.pdf) with the Supreme Court to stop Comelec Resolution 9922, which mandated the refurbishing of the machines, as the negotiated contract with Smartmatic violates RA 9184. It follows that the legal opinion of Atty. Ladra coincides with the IBP’s. It’s now the battle of lawyers, IBP versus Comelec.
For delicadeza, AES Watch is now calling all Comelec lawyers who supported the negotiated contract to withdraw their membership from the IBP, including those who retired and officers behind the infamous Resolution 9922. If IBP wins, bring back Atty. Ladra to the Comelec Law Department.