SC voids P1.3B deal, orders Comelec probe

by Ron Arriola

The Supreme Court declares the P1.3 billion contract between the Commission on Elections (Comelec) and Mega-Pacific eSolutions null and void, thus making manual counting of votes the only option to determine the winners in the May 10 elections.

In a strongly worded resolution, the High Court rules that the Comelec violated the law and its own bidding rules in order to award the contract to a non-existent consortium for the supply of automated counting machines, “which turn out to be highly defective and vulnerable to election fraud on a massive scale. . . .”

The Supreme Court votes 9-3-2 to nullify the contract. It also orders the Ombudsman to prosecute all those involved in the questionable transaction and the Solicitor General to recover the P849,167,697.41 already spent. Three justices dissented while the two others asked for more time to study the case.

According to the Supreme Court “the illegal, imprudent, and hasty actions have not only desecrated legal and jurisprudential norms but also cast serious doubts upon the poll body’s ability to conduct automated elections.”

It says the Comelec award-ed the billion-peso contract “without adequately checking and observing the mandatory financial, technical, and legal requirements,” and to a consortium that was yet to be formed and incorporated at the time of the bidding. And worse, the poll body accepted the computers and the programs, “which had failed to pass eight critical requirements designed to safeguard the integrity of the elections.”

Under the contract, Mega Pacific shall supply the Comelec with 1,991 automated counting machines for use in the elections. Mega-Pacific is the majority partner of a consortium composed of SK C & C Co. Ltd., WeSolv Open Computing Inc., Election.com Ltd., and ePLDT.

The counting machines, the High Court observes, failed to detect previously downloaded results and prevent them from being inputted again in several tests conducted to determine their performance accuracy. They were found incapable of showing the audit trail of the count/canvass at different levels, which is necessary to trace and verify the identities of operators who make the entries and download the results as well as the time when such entries and downloads are made.

Unscrupulous persons, the Supreme Court notes, may take advantage of these deficiencies by repeatedly feeding into the computers results favorable to a particular candidate or candidates.

The Comelec, the High Court adds, simply disregarded these deficiencies and awarded the contract to the consortium, thereby violating the very law it was supposed to implement.

In its defense, the Comelec, through Commissioner Resurreccion Borra, acknowledges the shortcomings and deficiencies in the software, but it claims they are minor and can easily be rectified.

The High Court disagrees. It says the contract involves the acquisition of both hardware and software. There is therefore no point to conduct the bidding, much less to award the contract, for the supply of the hardware when Mega-Pacific has yet to create the software and the Comelec has yet to evaluate them.

“It seems that the Comelec,” it says, “is just keeping its fingers crossed and hoping the final product would work when the elections come around. Apparently, [it] did not care about the software and was focused only on purchasing the machines.”

The Comelec requires that the automated machines must demonstrate a 99.9995 percent performance accuracy rating. Such high and unrealistic specification standard,” the Supreme Court adds, must have been included in the requirements “to discourage the entry of prospective bona-fide bidders, a sure indication of fraud. . . .”

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