THIS is what has been happening regarding the truth behind the issues raised by AES Watch. One by one, the people behind AES implementation in 2010 and 2013 are LITERALLY speaking like AES Watch. We were used to hearing former Commissioner Gus Lagman, Atty. Glenn Chong, former Governors Tingting Cojuangco and Manny Pinol, etc. But not anymore recently!
Let’s start with source code review. Source code is defined in RA_9369 (i.e., Election Automation Law) as human readable instructions that define what the computer/PCOS equipment will do. It also stipulates that the following must be finished at least three months before the elections:
1. The successful completion of a source code review.
2. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas
3. A certification that the source code reviewed is one and the same as that used by the equipment
Further, RA_9369 also stipulates that the “Commission shall allow the political parties and candidates or their representatives, citizens’ arm or their representatives to examine and test” and “Once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open to any interested political party or groups which may conduct their own review thereof.”
The above RA_9369 provisions were never complied with and this is directly related to the legal disputes between Smartmatic and Dominion Voting System (DVS). Per Mr. Tato Garcia, who was the AES 2010 Consultant to Comelec En Banc and PPCRV Alternate Representative to 2013 Comelec Advisory Council (CAC), Smartmatic SHOULD BE HELD LIABLE for failure to conduct the source code review. He said this was also discussed in the 2013 Advisory Council’s final report preparation. True enough, you would see in the 2013 CAC report, it was recommended therein that the source code review should be done immediately after the selection of technology. AES Watch, therefore, agrees with Mr. Garcia and CAC in this regard.
The CAC also highlighted in its report that the source code review should be ensured throughout the procurement process, especially in the Terms of Reference (TOR), the post-qualification evaluation, and the contract agreement/s. AES Watch agrees with CAC in this regard.
Sad to say, there was no post qualification exercise done in 2009 when Smartmatic-TIM was proclaimed the winning bidder not only for source code review but for all the critical requirements of the TOR like the validation of Smartmatic’s ownership of the PCOS machines, digital signatures, and others. It was determined later that the real owner of the PCOS machines, including the source code, was the DVS.
Taking into consideration the scenario wherein Smartmatic subcontracted DVS in 2010 and 2013, there’s a big possibility that the Government Policy Procurement Board (GPPB) of the Department of Budget and Management would have failed Smartmatic then, based on their straightforward rules had they been informed of Smartmatic’s non-disclosure, to wit:
1. Generally, a supplier may be allowed to subcontract a portion of the contract or project. However, the supplier should not be allowed to subcontract a material or significant portion of the contract or project, which portion must not exceed twenty percent (20%) of the total project costs.
Smartmatic subcontracted 100% of the job to DVS. Smartmatic’s expertise is not in the field of providing AES solution using Optical Mark Recognition (OMR) technology or PCOS machines but their proficiency is in the area of supplying Direct Recording Electronic (DRE) machines like those used in the 2008 ARMM elections. Therefore, Smartmatic only acted as a mere RESELLER of DVS’ PCOS machines!We just realized in 2013 that we, Filipinos, were deceived by Smartmatic. Comelec was made to believe that the owner of the machines was Smartmatic. Consequently, GPPB was not informed about this serious issue.
2. All subcontractor arrangements must be disclosed at the time of bidding, and subcontractors must be identified in the bid submitted by the supplier; and
3. Any subcontracting arrangements made during project implementation and not disclosed at the time of the bidding shall not be allowed.
Smartmatic did not disclose its relationship with the DVS. This was a top secret until the legal battle between Smartmatic and DVS was discovered.
Smartmatic did not only violate the above GPPB rules, it also vehemently ignored also the provisions of RA_9369, RA_8792 (i.e., e-Commerce Act) and the Rules on Electronic Evidence of the Supreme Court. To have transparent bidding this coming December 2014, it is therefore recommended that the 2014 Comelec SBAC members should take a refresher course on RA_9184 (i.e., Government Procurement Reform Act), its IRR and GPPB’s rules.
To support AES Watch in its motion for the blacklisting of Smartmatic, please sign AES Watch online petition at: https://www.change.org/p/mr-dennis-s-santiago-aes-watch-asks-to-blacklist-smartmatic-and-prohibit-all-its-subsidiaries-and-representative-offices-from-participating-in-any-philippine-government-procurement-including-negotiateprocurement?recruiter=false&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_facebook_responsive&utm_content=large
Thanks to Mr. Garcia and CAC for considering the issues raised by AES Watch. Mabuhay!