The Supreme Court (SC) is inclined to nullify the P300-million “midnight deal” entered into by the Commission on Elections (Comelec) with Smarmatic-Total Information Management (Smartmatic-TIM) for the refurbishment of Precinct Count Optical Scan (PCOS) machines, according to an unimpeachable source.
The source told The Manila Times that the SC justices are of the opinion that the contract between the Comelec and Smartmatic is illegal because it did not undergo public bidding.
The source said majority of the magistrates are likely to adopt the draft ponencia of Associate Justice Estela Perlas-Bernabe declaring the Smartmatic contract null and void.
The tribunal may hand down its decision on Tuesday.
Since the justices are of the view that the contract violates Republic Act (RA) 9184 or the Government Procurement Reform Act, the source said the 15-man tribunal is inclined to grant petitions of the Integrated Bar of the Philippines (IBP), Catholic Bishop Broderick Pabillo and former Comelec Commissioner Augusto Lagman and other groups that questioned the legality of the Smartmatic deal, which was signed by former Comelec Chairman Sixto Brillantes Jr. three days before he retired on February 2, 2015.
The source added that most justices are against implementation of the contract because they believe that public bidding is a mandatory requirement in government contracts.
The questioned contract calls for the repair, refurbishment and maintenance of 82,000 PCOS machines that the poll body plans to used in the 2016 polls.
In its petition for certiorari, the IBP accused the Comelec of grave abuse of discretion amounting to lack or excess of jurisdiction for allowing the contract with Smartmatic to proceed. It said the deal did not pass through the required public bidding and it was sealed via direct contracting or single-source procurement.
The group said the Comelec’s excuse that it lacked time to hold public bidding should be junked because competitive bidding in government procurement is “a matter of public policy.”
On March 23, the SC, through a vote of 12-2, indefinitely stopped the P300-million deal by issuing a temporary restraining order.
But even if the SC is yet to issue its decision on the case, the Comelec has laid down a number of alternative measures that may be implemented once the High Court voided the PCOS deal.
Comelec Commissioner Luie Tito Guia did not elaborate on the poll body’s plans, saying these are yet to be made final.
“Nakakasa na yan. Hirap i-finalize [It is ready. It’s difficult to finalize],” Guia told The Manila Times.
He said the Comelec remains open to alternative modes of election as long as these are accurate and transparent.
Guia added that they expect President Benigno Aquino 3rd to name a new Comelec chairman and two commissioners who will help them come up with a decision as the poll body continues with its preparations for next year’s polls.
“January  is the most crucial point. By January, we should be ready with ballots. We know already the candidates [by the time]and all the precincts,” the official said.
If the SC will void the PCOS contract, Comelec officials are considering holding manual elections or ask Congress for a P14-billion supplementary budget to buy new counting machines.
WITH WILLIAM B. DEPASUPIL