CA upholds Comelec deal with Smartmatic

MANILA, Philippines - The Court of Appeals (CA) has upheld the contract of the Commission on Elections (Comelec) and Smartmatic-TIM Corp. on the lease of over 92,000 vote counting machines (VCMs) used in the general polls last May 9.

In a decision released yesterday, the Ninth Division of the appellate court granted the petition of the poll body and reversed the temporary restraining order (TRO) issued by the Manila Regional Trial Court (RTC) Branch 11 in July last year stopping the P6.3-billion deal.

The CA agreed with the argument of the Comelec, through the Office of the Solicitor General, that the RTC committed grave abuse of discretion in issuing the TRO upon petition of prospective bidder Agan Montenegro Malagasa and Company (AMMC).

It cited technical grounds, including lack of legal standing of AMMC

and the failure to implead Smartmatic in the case.

The court stressed that AMMC was “merely a prospective bidder” and has “no personality to challenge the decision.”

It explained that the firm is not even a losing or failed bidder because it was not able to submit a proposal before the Comelec on time.

The CA further ruled that there was no showing of urgent and paramount necessity to prevent serious damage on the part of the AMMC to justify the issuance of the TRO.

“The damage that AMMC would allegedly suffer if the assailed decision is implemented is the amount of P75,000 that it paid to secure bid documents. Such damage can hardly be considered irreparable,” read the ruling penned by Associate Justice Melchor Sadang.

The CA also cited the trial court’s failure to direct AMMC to implead

Smartmatic-TIM as party defendant considering that it is an “indispensable party” and that its inclusion in the case is a

“mandatory requirement” for the court to acquire jurisdiction over the

case.

“Unfortunately, without first directing the joiner of JV Smartmatic, respondent judge continued to act on the case by granting the assailed injunctive relief. In doing so, respondent judge gravely abused its discretion. Also, considering that the court has not acquired jurisdiction over JV Smartmatic, the order and TRO issued pursuant thereto are void,” it pointed out.

Associate Justices Celia Librea-Leagogo and Amy Lazaro-Javier concurred with the ruling.

Apart from this case, the Comelec had to deal with another TRO issued by the Manila RTC on its separate P1.72-billion contract with

Smartmatic-TIM for the lease of 23,000 optical mark reader machines used as backup for the polls.

The poll body decided in August last year to proceed with the awarding of the deal to the technology provider and ignore the TRO issued by the trial court. The commissioners believed that the RTC had no jurisdiction to issue the order and that only the Supreme Court can do so.

In April last year, the SC voided the Comelec’s P268.8-million extended warranty contract with Smartmatic-TIM for the diagnostic and repair of the precinct count optical scan (PCOS) machines used in the previous polls.

It held that the poll body violated Republic Act 9184 (Government

Procurement Reform Act or GPRA) when it resorted to direct contracting method instead of using the process of public bidding.