THE COMMISSION on Elections has been quite strict in procuring, via public bidding, the machines to computerize the elections. Given its unenviable automation track record, the present Comelec – led by its chair, Justice Jose A. R. Melo – has all the reasons to be extra careful and to “make haste slowly.”
Three phases. During the past 20 years and despite spending billions of pesos, the Comelec has miserably failed to computerize our antiquated, fraud-prone and super-slow election system. The responsibility for this failure had been placed by the Supreme Court squarely on the “the illegal, imprudent and hasty actions of the Commission (that) have not only desecrated legal and jurisprudential norms, but have also cast serious doubts on the poll body’s ability and capacity to conduct automated elections.”
On Dec. 22, 1997, Congress enacted Republic Act 8436 mandating the automation of our electoral system. Initially, the Comelec wanted to computerize fully the May 11, 1998 polls. However, due to time constraints, it had to postpone its plans to the May 10, 2004 presidential elections.
The Comelec divided the 2004 poll computerization program into three phases: first, the cleanup of the list of voters; second, the automation of the counting and canvassing of votes; and third, the electronic transmission of election results.
Three rebuffs. However, the Supreme Court voided all the contracts entered into by the Comelec to implement these three stages due to constitutional and legal flaws. Some bidding incidents looked so stupid and so bizarre that they evoked suspicions of unimaginable incompetence or downright corruption. The first of these contracts was invalidated in “Comelec vs Quijano-Padilla” (Sept. 18, 2002); the second in “Information Technology Foundation vs Comelec” (Jan. 13, 2004); and the third in “Brillantes vs Comelec” (June 15, 2004).
The Quijano-Padilla verdict, penned by Justice Angelina Sandoval-Gutierrez, voided the contract awarded by the Comelec to the Photokina Marketing Corp. for the digitization of the fingerprints of the voters (to assure their identification when they cast their votes), because the winning bid of P6.588 billion exceeded the P1 billion appropriated by Congress for the project.
The Information Technology decision, written by me, nullified the contract granted to the “Mega Pacific Consortium” for the automation of the counting and canvassing of the ballots, because the bidding and the award were undertaken “with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements – in violation of law and jurisprudence.”
Despite the scrapping of the automation of the counting and canvassing of votes, the Comelec nonetheless tried to implement the third phase, the electronic transmission of advanced “unofficial” precinct election results via the “Internet, text messaging and electronic billboards in designated locations.” The Brillantes decision, authored by Justice Romeo J. Callejo Sr., invalidated this “unofficial quick count” because the Comelec had “no authority to canvass the votes for president and vice-president.” This power was constitutionally granted to Congress, not to the Comelec.
Bidding guidelines. The Information Technology ruling did not merely void the automation contract. It also asked the ombudsman “to determine the criminal liability – if any – of the public officials (and conspiring private individuals)” and directed the solicitor general to “take steps to protect the government and vindicate public interest from the ill effects of the illegal disbursements of public funds by reason of” the void contract. This decision taught several lessons in public bidding, such as:
- There is “an overarching need for utter transparency” to avoid the slightest hint of impropriety. Never “break the speed record in the award of multibillion-peso contracts.”
- Joint ventures or consortiums should disclose their internal agreements or business plans and show “the due existence, composition and scope of the aggrupation” to let the Comelec know who it is dealing with.;
- “The essence of public bidding is violated by the practice of requiring very high standards or unrealistic specifications that cannot be met” only to water them down after the bid has been awarded. Such scheme, which discourages the entry of bona fide bidders, is in fact a sure indication of fraud in the bidding.;
- “The counting machines and the canvassing system will never work properly without the software program” no matter how many times the machines were tested and re-tested, if nothing was done about the programming defects and deficiencies, the same danger of massive fraud remains.;
- Public bidding aims to “level the playing field” bidders must bid under the same conditions; and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal.;
- The substantive amendment of a contract without any new public bidding – after the original bidding process had been concluded – violates the essence of public bidding.;
- The Comelec must follow strictly the law on public bidding and its own published bidding rules.
Clearly, Melo and his team want to avoid past blunders and suspicions of corruption, to follow legal requirements faithfully and, ultimately, to hold electronic, honest, orderly and peaceful elections (e-hope) in 2010. Our people expect nothing less.
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