January 7, 2015

AES Watch questions Comelec-Smartmatic midnight deal

Why did the Comelec award a new contract with the foreign company Smartmatic on Dec. 23 last year – without any prior or post-announcement and when the whole country was already on vacation for Christmas? Why is Comelec Chairman Sixto Brillantes, Jr., now saying the deal had to be made without public bidding for reason of lack of time?

These and other questions were raised today by the Automated Election System Watch (AES Watch) in response to what many clean election advocates described as yet another “insidious, midnight deal” forged by Comelec with Smartmatic.

AES Watch, through spokesperson Nelson J. Celis, said Brillantes and most Comelec commissioners are again bypassing the rule of law – particularly RA 9184 or procurement law – and obeying the Venezuelan company’s every command dictated by profit rather than the interest of clean, transparent, and accurate election.

Going by the argument of Comelec, Celis said, the election body had all the time to conduct a public bidding for the repair of the precinct count optical system (PCOS) machines as early as 2013 when the DOST’s Technical Evaluation Committee (TEC) disclosed defects found in some voting units sampled for diagnostic tests by the group. The TEC said the system flaws particularly digital distortions appearing in ballot images “could have altered election results” in 2013.

“The lack of project management plan led Comelec to award the first PhP300 million (i.e., out of the Php1.2 billion budget) to Smartmatic hastily for the Program 1 (i.e., first part of an extended warranty) that involves the examination, diagnostics, and some minor repairs of PCOS machines based on Comelec Resolution No. 9922,” Celis said. “But they had a year or so to procure such services! Now, they are hurrying up claiming that postponing the repairs might cause delays in the Comelec's preparations for 2016 elections.”

The AES Watch spokesperson said this is always the Comelec’s questionable move in procuring goods and services – “to schedule the procurement in the nick of time so they would always assert that there’s no more time.” As a result, he said, “Comelec would invoke RA 9184 Sec. 48 or the so called alternative methods of procurement such as direct contracting.”

Last December, the same issue was also challenged by Comelec’s legal deparment, headed by Director Esmeralda Ladra, saying, “It behooves upon us to ensure that this Extension of Warranty for the repair and maintenance of PCOS machines, which is a clear example of direct contracting or single source procurement, be made to undergo the tests of validity under RA 9184.”

Celis, who helped in the drafting of the election modernization law, said the technical defects of the PCOS machines had been acknowledged much earlier by the DOST. Comelec had been denying about the technical problems until it was directed by the Joint Congressional Oversight Committee (JCOC) on Automated Election System (AES) to determine the cause of the problems but still failed to do so until the end of 2014.

Also an IT business management professor of De La Salle University and 2013 IT electronics engineering national awardee, Celis estimates the repair and calibration of the PCOS machines will take six months. “So there should be no hurry to award the contract to Smartmatic. Let the new chairman handle the repairs,” he said.

Brillantes, along with Commissioners Lucenito Tagle and Elias Yusoph, will retire from the Comelec on Feb. 2. Out of seven commissioners, the three plus two others voted in favor of the new award.

In a related statement, AES Watch co-convener and CenPEG director for policy studies, Bobby M. Tuazon, said the poll body should have waited for a new slate of commissioners before awarding the new contract transparently and by the rules. The last-minute midnight deal has raised speculations about the integrity of the transaction and, indeed, some groups are now planning to question this new controversial deal before the court, Tuazon said.

Cesar Flores, president of Smartmatic-Asia, last month threatened Comelec against giving the award to other companies insisting that his company manufactured the machines, hence, only they have the right to do the repairs. Tuazon said Flores was lying through his teeth: Not only is a Shanghai-based company the real manufacturer of the machines but another firm, the Canadian Dominion Voting System, owns the system with its lease to Smartmatic contracted only for the 2010 elections.

Celis said, AES Watch still firmly believes that the repair of the PCOS machines is not the solution. “The ultimate solution is to implement hybrid election system (i.e., manual counting with electronic transmission and automated canvassing and consolidation), blacklist Smartmatic and prohibit all its subsidiaries and representative offices from participating in any Philippine government procurement (including negotiated procurement) for implementing defective AES in 2010 and 2013 national and local elections.” 

AES Watch comprises more than 40 citizens’ organizations of IT professionals, election watchers, sectoral organizations, scholars, and policy think tanks. Launched in January 2010, AES Watch’s first spokesperson is Alfredo E. Pascual, now UP President; its Honorary President is former Vice President Teofisto T. Guingona, Jr. The citizens’ election watch group has since 2010 called for the junking of the defective and non-compliant Smartmatic PCOS machines. Its conveners have filed several court cases – including the Ombudsman - against both the Comelec and Smartmatic. The broad watchdog also advocates the alternative use of Filipino IT in developing election technology.

For details of this release, please contact:

AES Watch Acting Secretariat
c/o 3F CSWCD Bldg., Magsaysay Avenue
UP Diliman 1101 Quezon City
TelFax +9299526

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