Supreme Court asked to reconsider ruling on P1.8-billion PCOS machine deal

MANILA, Philippines - The Automated Election System Watch (AESW) yesterday asked the Supreme Court (SC) to reconsider its ruling last month allowing government to proceed with its P1.8-billion deal for the purchase of precinct count optical scan (PCOS) machines for next year’s midterm polls.

In their motion for reconsideration, the AESW led by former vice president Teofisto Guingona said a majority of the justices erred in dismissing their consolidated petition seeking to stop the Commission on Elections (Comelec) and Netherlands-based Smartmatic from proceeding with the contract for purchase of some 82,000 machines used in the 2010 polls.

Through lawyer Felix Carao Jr., petitioners warned that the SC ruling was tantamount to giving Smartmatic a benefit then not known or available to bidders for the 2010 polls automation when its contract was extended after supposed expiration.

They insisted that the period of the option to purchase under the Automated Election System (AES) contract had already lapsed on Dec. 31, 2010, which makes the new deed of sale executed by Smartmatic and Comelec illegal.

“If Comelec desires to procure PCOS machines and items like those under the void deed of sale, it should now conduct public bidding,” the group argued, adding that the sanctity of the ballot and the electoral process are best secured when the electoral system is opened to healthy, competitive public bidding.

The AESW also refuted speculation of the majority of SC magistrates that the Comelec might end up acquiring the same PCOS machines at a higher price should it conduct public bidding for the AES for the 2013 elections.

On the contrary, the AESW said the poll body should conduct public bidding precisely because it is there that the body would be able to procure PCOS machines and other equipment with the best possible quality and pricing advantage.

With regard to the issue of time constraints, petitioners reiterated that it is not too late for the SC to order the conduct of requisite public bidding of the items needed for the upcoming 2013 elections.

They noted that for the 2010 elections, the poll body conducted its bidding for the AES 10 months before election date.

Voting 11-3 in a special session last June 13, justices of the high court dismissed the consolidated petitions of AESW, the Solidarity for Sovereignty (S4S) led by Ma. Linda Montayre, and another group of concerned citizens led by Davao City Archbishop Fernando Capalla.

A majority of the justices believed that the deal was valid since it was forged when the earlier contract between Comelec and Smartmatic for the 2010 polls had not yet been terminated.

The ruling penned by Associate Justice Diosdado Peralta also cited the failure of petitioners to “give a plausible alternative to ensure the conduct of a successful 2013 automated elections, in the event that the Court nullifies the Deed of Sale.”

Dissenters led by Associate Justice Martin Villarama Jr., on the other hand, held that the law or violation of contract should not provide exemptions for practical reasons.

They believed the contract should be nullified for violation of Republic Act 8436 (Poll Automation law).