EN BANC
G.R.
No. 201112 (Archbishop Fernando R. Capalla, Omar
Solitario Ali, and Mary Anne L. Susano v. Commission on Elections)
G.R.
No. 201121 (Solidarity for Sovereignty [S4S] represented
by Ma. Linda Olaguer; Ramon Pedrosa; Benjamin Paulino, et al. v. Commission on
Elections)
G.R.
No. 201127 (Teofisto T. Guingona, Bishop Broderick S.
Pabillo, Solita Collas Monsod, et al. v. Commission on Elections and Smartmatic
TIM Corporation)
G.R.
No. 201413 (Tanggulang Demokrasya [TanDem], Inc., Evelyn
L. Kilayko, Teresita D. Baltazar, et al. v. Commission on Elections and Smartmatic TIM Corporation)
Promulgated:
June
13, 2012
x-----------------------------------------------------------------------------------------x
S E P A R A T E C O N C U R R I N G O P I N I O N
VELASCO, JR., J.:
I agree with the ponencia that the Deed of Sale dated
March 30, 2012 is legal and valid, but for another reason, i.e., it can be
considered as a purchase via the direct contracting mode under Section 50 of
Republic Act No. 9184 or the Government
Procurement Reform Act. However, I take exception to the majoritys holding
that the option to purchase (OTP) was legally extended or revived by the
parties, and the option extension agreement can be the legal basis for the
validity of the assailed deed of sale.
Before the Court are these
consolidated petitions under Rule 65[1]
assailing and seeking to nullify the Deed of Sale entered into on March 30,
2012 by and between the Commission on Elections (COMELEC) and Smartmatic-TIM
Corporation (Smartmatic-TIM) for the acquisition of the Precinct Count Optical
Scan (PCOS) machines with the corresponding Consolidated Canvassing System
(CCS) hardware and software pursuant to the OTP clause, stipulated under the
2009 Contract for the Provision of an Automated Election System (AES) for the 2010
elections (AES Contract, hereinafter).
Sought to be nullified too are COMELEC Resolution Nos. 9373 and 9376
dated March 6 and 21, 2012, respectively, and the March 30, 2012 agreement on
the extension of the OTP under the AES Contract.
As prayed for, the Court issued on April 24,
2012 a temporary restraining order (TRO) enjoining the implementation of the
deed in question. Forthwith, the Court
heard the parties on oral arguments.
The antecedent facts, as culled from the records and as gathered from the Decision of the Court in the related case of Roque, Jr. v. Commission on Elections,[2] are as follows:
For
the automation of the 2010 national and local elections, the COMELEC designed
and eventually released a public bidding system embodied in the Request for
Proposal (RFP), also known as Terms of Reference (TOR), for the procurement of automation
machines with the necessary technical components. The RFP/TOR described the prospective bids as
one for lease, with an option to purchase, of an automated election system
(AES). The terms of the OTP are more particularly described in Part V of the
RFP on Other Specifications:
28. The offer shall be for a one-time lease basis for Component 1-A, 1-B and 1-C.
28.1. An offer for an option to purchase by component to be decided by COMELEC before December 31, 2010, shall be included by the bidder in its proposal.
28.2. The price of the option-to-purchase shall not exceed 50% of the lease price of the equipment. (Emphasis added.)
After
public bidding, the COMELEC and Smartmatic-TIM, the winning responding consortium,
executed on July 10, 2009 the AES Contract for the lease of goods and services
specified under the contract. The contract award came after Smartmatic-TIM has
passed, among other things, the post-qualification eligibility requirements and
the end-to-end PCOS machine demonstration tests COMELEC conducted pursuant to
Republic Act No. (RA) 8436, as amended by RA 9369.[3] While stating in Roque, Jr. that the real worth of the PCOS machine units and
software will come when actually deployed and operated on election day, the
Court nonetheless declared that hurdling the demo-testing reflects the
capability of the PCOS machines and is an indication of their having met the
minimum capabilities standards required by RA 8436.
Article
6 of the AES Contract contained the following parallel option-to-purchase
provision: COMELEC shall notify
[Smartmatic-Tim, as] PROVIDER on or before 31 December 2010 of its option to
purchase the Goods as listed in Annex L.
On May
10, 2010, the
x x x The AES encountered too many problems that need to be resolved before this particular system can be used again. Also, the savings of approximately 2 billion pesos versus leasing the machines again is negated by the costs of storage, breakage and obsolescence.
For its part, the COMELECs Technical
Working Group (TWG) submitted its July 20, 2010 Report on the Manual Audit
(RMA) of the AES in the 2010 elections.[7]
The manual audit basically serves to check the fairness and accuracy of the AES.
The RMA, thus, highlighted the transparency and credibility of the 2010 elections.
The report reflected a 99.60% accuracy rate of the AES for all national level
positions. The TWG added that, in most cases of large variances, errors were
due to human factors, such as the inability of the RMA Team (RMAT) to
distinguish over votes and ambiguous markings. The TWG concluded the Report
in this wise:
If the Random Manual Audit is to make sure of the accuracy of election results and preserve electoral integrity, then it must be clearly pointed out from the beginning that the margin of variance is a computation of the difference between the manual count and the machine count. Hence, it is a test between man and machine. While the tolerance level set for the accuracy of the machine is a test that involves only the machine [sic]. The margin of variance indicated by the NSO as equivalent to 1% is based on the accuracy rate of 99% (the allowable rate used in statistical analysis) cannot thus be used as the basis of comparison to the 99.995% accuracy rate of the PCOS machine set by the Request for Proposals (RFP) as a requirement for the Bidding Process of the AES technology.
In September 2010, the COMELEC, vis--vis the upcoming
special elections in three provinces, partially exercised the OTP and bought 920,
out of the leased 82,000 plus, units of PCOS machines.
On December 16, 2010, or two weeks before the OTP was to
expire, Smartmatic-TIM sent COMELEC what turned out to be the first of several
letters offering extensions of the period to exercise the OTP. The first offer
came with a couple of sweeteners, such as waiving the storage and maintenance
costs related to keeping the machines in the country. This was followed by
another letter of March 23, 2011, but this time with a reminder that the option
had already expired but which Smartmatic-TIM was willing to extend up to April
1, 2011. Just as in the first instance, this second letter-offer went
unanswered.
On April
1, 2011, Smartmatic-TIM again wrote COMELEC proposing a Revised Extended
Option to Purchase effective December 31, 2011, and stating new conditions for
its availment. The letter stressed that Smartmatic-TIM no longer had the obligation
to sell the equipment covered by the OTP. In another letter of December 28,
2011, Smartmatic-TIM again offered to extend the option period until March 31,
2012.
In the meantime, or on April 8, 2011,
COMELEC sent its budget proposal to the Department of Budget and Management
(DBM) for the automated 2013 national and local elections. So as to enable it to fully automate in that
years electoral exercise, with a target ratio of 600 voters per precinct and
the lease of some 125,000 new voting machines, COMELEC requested for the
purpose a budgetary allocation of PhP 12.854 billion. As later events would
show, however, the General Appropriations Act for FY 2012 allocated a budget of
PhP 7,962,221,000 to COMELEC for the upcoming elections, way below the
requested amount of PhP 12.854 billion. According to the COMELEC, out of the
approved outlay for 2012, only PhP 2.2 billion is available to secure an AES
for the 2013 elections, as the balance would need to be allocated for other
equally essential services.
On January 12, 2012, the CAC issued
Resolution No. 2012-001, recommending the use of the Optical Mark Reader technology
for the 2013 Elections.[8]
On February 6, 2012, the COMELEC Law Department issued a
Memorandum, opining that the COMELEC can legally exercise the OTP, provided
that the extension period has not yet expired and provided further that the
offer is identical to that contained in the AES Contract.
The CAC, obviously having been apprised of the
COMELECs bent to exercise the OTP, issued on February 8, 2012 Resolution No.
2012-003, which in part reads:
2. that the [OTP] under the 2010 national and local elections contract should not be exercised, if as a consequence, the rest of the system must come from the same vendor as this:
a. may not afford the COMELEC the best possible total solution, as the hardware is just one component of the entire automated election system;
b. prevents the COMELEC from taking advantage of the best possible technology currently available considering technological advances and/or obsolescence;
c. will prevent other prospective vendors from competitively participating in the bidding process x x x.[9]
On March 6, 2012, the COMELEC issued
its first response to Smartmatic-TIMs queries through Resolution No. 9373.[10]
In it, the COMELEC manifested its resolve to seriously consider exercising the OTP, subject to certain
conditions, and provided Smartmatic-TIM introduces desired fixes and enhancements on the AES. The next day, the CAC issued Resolution No.
2012-005, virtually endorsing the exercise by COMELEC of the OTP subject to
certain conditions. The pertinent portion of the Resolution provides:
Wherefore, the Advisory Council x x x resolves as it hereby resolved to recommend that COMELEC ensure the following:
1. Should the COMELEC be able to overcome the legal uncertainty and decide to exercise the option to purchase, such exercise be limited to what was included in the original contract for the 2010 National and Local Elections x x x.[11]
On March 21, 2012, the COMELEC, apprehensive about the
possibility that all its preparations for the 2013 automation would be for
naught should it proceed with a public bidding on several essential services
given its limited FY 2012 budget allocation, among other reasons, decided to
exercise its OTP, subject to defined conditions, and issued Resolution No. 9376
for the purpose.
Resolution No. 9376 reads:
NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Republic Act No. 9369 and other election laws, and after finding the exercise of the Option to Purchase most advantageous to the government, RESOLVED, as it hereby RESOLVES, to exercise its Option to Purchase the PCOS and CCS hardware and software in accordance with Section 4.3, Article 4 of the AES contract between the Commission and SMARTMATIC-TIM in connection with the May 10, 2010 National and Local Elections, subject to the conditions that:
1. The warranties agreed upon under Articles 4 and 8 of the 2010 AES Contract shall be in full force and effect;
2. The original price for the hardware and software covered by the Option to Purchase as specified under Annex L of the 2010 AES contract shall be maintained, excluding the cost of the nine hundred twenty (920) units of PCOS and related peripherals previously purchased for use in the 2010 special elections; and
3. All other services related to the 2013 Automated Election System shall be subject to public bidding.[12] (Emphasis supplied.)
On March
29, 2012, COMELEC issued Resolution No. 9377 accepting the offered extension of
up to March 30, 2012 within which to exercise the OTP.
On March
30, 2012, the COMELEC and Smartmatic-TIM inked an Agreement on the Extension
of the Option to Purchase under the Contract for the Provision of the Automated
Election System for the May 10, 2010 Synchronized National and Local Elections
(Extension Agreement), pursuant to Art. 19 of the AES Contract on Amendments.[13] Some highlights of this agreement: (1) The
period within which COMELEC can exercise its OTP is extended to March 31, 2012;
and (2) the original price of the hardware and software covered by and
specified in the underlying AES Contract shall be maintained, without prejudice
to price adjustment brought about by reasonable system modifications of the
software.
On the same day, March 30, 2012, COMELEC and Smartmatic-TIM
executed a Deed of Sale for the purchase, at the total cost of PhP
1,833,274,457 of the PCOS and CCS hardware and software pursuant to the OTP,
subject, among other things, to the conduct of the Hardware Acceptance Test and
compliance with the final scope of work for additional system modification, or
the so-called fixes and enhancements COMELEC requested in the Extension
Agreement. By Resolution No. 9378,
COMELEC approved the Deed of Sale aforementioned.
It is against
the backdrop of these material facts and events that the petitioners have
interposed their separate petitions anchored on several grounds. While the formulation of the various grounds
differs, the petitions in G.R. Nos. 201112 and 201127 capture the issues which are
determinative of this case, as follows:
1. Whether or not the COMELEC may purchase these PCOS machines without following R.A. No. 9184 or the Government Procurement Law. As a corollary, whether or not COMELEC may still exercise the option after December 31, 2010;
2. Whether or not the PCOS machines used by Smartmatic-TIM are qualified to be used in the AES as provided under R.A. 9369. The use of the PCOS machines that fail to meet the minimum standards required to safeguard the votes and the voters rights is unlawful; and
3.
Whether COMELEC committed grave abuse of
discretion in opting to buy PCOS machines and allied paraphernalia of
SMARTMATIC-TIM for use in the approaching 2013 election, despite the
incontrovertible findings of the glitches, malfunctions, bugs and defects of
the same.
Petitioners seek, as their main plea, the
nullification of the Deed of Sale in question, it being their common submission
that the deed springs from and finds context in the exercise by COMELEC of the OTP
under the aforequoted Art. 4.3 of the AES Contract, an option no longer
existing when availed of. Grave abuse of discretion attended that exercise, so
petitioners chorus, thus infecting it too with the vice of invalidity and,
ergo, COMELEC Resolution Nos. 9373 and 9376 and the resulting Extension
Agreement should also be stricken down as void.
Pushing their point, petitioners would argue
that since the December 31, 2010 option deadline fixed under the AES Contract
had come to pass without the COMELEC exercising the OTP, Smartmatic-TIM cannot
unilaterally extend, as it did in fact, the option to buy the leased PCOS
machines. Accordingly, they add, the deed of sale of the PCOS machines cannot
be considered as the end-product of the OTP clause of the AES Contract. In
fine, the purchase constitutes a new procurement, one not entered into pursuant
to or contemplated in the OTP clause written in the AES Contract. As a new
procurement, therefore, a new public bidding is required for the new
procurement by Section 10 of RA 9184,[14]
as shall be discussed shortly.
To petitioners, the unilateral extension of the option
period effected after its lapse is without legal consequence, implying that if effected
and accepted prior to the expiration of the original option period, there could
have plausibly been a valid amendment of the stipulation on the option. As argued, the extension, when finally
accepted on March 30, 2012, not only brought about a substantial or material
amendment to the bidded AES Contract, which is not allowed; worse still, it
resulted also in the COMELEC concluding, under the guise of exercising a
purported extended OTP, a purchase agreement in breach of the law and policy on
public bidding.
On top of the foregoing arguments, petitioners invite
attention to the alleged deficiencies, lapses and glitches that, as observed by
IT experts in and out of government, surfaced during the May 10, 2010 electoral
exercise. The litany includes, but is not limited to: (1) the disabling of
security features, like the ultra violet (UV) mark sensors; (2) the absence of
digital signatures; (3) faulty CF cards; (4) lack of or ineffective source code
review; and (5) insufficient random manual audit. They argue further that COMELEC, oblivious of
its mandate to ensure clean elections, still pushed through with the purchase
of defective machines, jeopardizing in the process the sanctity of the 2013
electoral process. And training their sight at Smartmatic-TIM, petitioners rue
that the formers equipment had performed miserably in the last elections and
even failed to meet the automated election laws minimum requirements.
Public and private respondents, in their separate
comments, urge the dismissal of the consolidated petitions on substantive and
procedural grounds. They also pray for the immediate lifting of the TRO thus
issued.
The gravamen of respondents case may be formulated,
thusly: the OTP forms an integral part of the larger AES Contract concluded
after public bidding, and the COMELEC was not precluded from agreeing to and accepting
an extension of the OTP, even after
the lapse of the original option date.
The assailed deed of sale, so respondents claim, is but an
implementation of a residual surviving provision of the AES Contract, a
procurement contract awarded after public bidding. Be that as it may, the award
of the purchase contract need not go through another public bidding
process. To COMELEC, the purchase of the
PCOS machines and the use of its AES technology under the same terms agreed
upon are advantageous to the government and, when viewed against the backdrop
of inadequate budgetary support and time for preparation, constitute its best
viable option.
Procedural Issues
The procedural issues raised pivot on three concerns: the question of legal standing, the propriety
of the recourses availed of by the petitioners, and the non-observance of the
hierarchy of courts.
Petitioners have legal standing
Respondents
posture as to petitioners lack of the necessary personality or standing (locus standi) to file the cases at bar
is not difficult to deflect. Locus standi may be defined as:
x x x a personal and substantial interest in the
case such that the party has sustained or will sustain a direct injury as a
result of the governmental act that is being challenged. The term interest means a material
interest, an interest in issue affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is
whether a party alleges such personal stake in the outcome of the controversy
as to assure the concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional
questions.[15]
To have
legal standing, therefore, a suitor must show that he or she has sustained or
will sustain a direct injury as a result of a government action, or has a
material interest in the issue affected by the challenged official act.[16] However, the Court has, time and again, acted
liberally on the locus standi
requirements and has accorded certain individuals, not otherwise directly
injured, or with material interest affected, by a Government act, standing to
sue, provided a legal issue of critical significance is at stake.[17] The rule on locus standi is, after all, a mere procedural technicality in
relation to which the Court, in a slew of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens or taxpayers, as here, to sue in the
public interest, albeit they may not have been personally injured by the
operation of a law or any other government act.[18] In David
v. Macapagal-Arroyo,[19]
the Court laid out the bare minimum norm before the so-called non-traditional
suitors may be extended standing, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators.
The case before the Court is of
critical importance to the nation, ultimately involving the efficiency of
computerized hardware and software intended to achieve clean, or at least
credible, elections. Assuming a liberal
stance is, therefore, in order. In allowing petitioner to institute the instant
petition, it is apropos to recall what the Court wrote in Roque, Jr.:
There is no doubt in our mind, however, about the compelling significance and the transcending public importance of the one issue underpinning this petition: the successand the far-reaching grim implications of the failureof the nationwide automation project that will be implemented via the challenged automation contract.
The doctrinal formulation may vary, but the bottom line is that the Court may except a particular case from the operations of its rules when the demands of justice so require. x x x Accordingly, technicalities and procedural barriers should not be allowed to stand in the way, if the ends of justice would not be subserved by a rigid adherence to the rules of procedure. This postulate on procedural technicalities applies to matters of locus standi and the presently invoked principle of hierarchy courts, which discourages direct resort to the Court if the desired redress is within the competence of lower courts to grant x x x. For indeed the Court has full discretionary power to take cognizance and assume jurisdiction of special civil actions for certiorari and mandamus filed directly with it for exceptionally compelling reasons or if warranted by the nature of the issues clearly and specifically raised in the petition.[20]
Special civil action for certiorari
under Rule 65 is the proper remedy
The COMELEC would have the Court
dismiss the petitions on the postulate that the petitioners availed themselves
of the wrong remedy. A special civil
action for certiorari, prohibition and mandamus, as urged, is improper as the
object of the recourse is the nullification of an agreement, the Deed of Sale;
hence, the proper action is one for annulment of contract under the
jurisdiction of the Regional Trial Court (RTC).
It
must be remembered that the assailed March 30, 2012 Deed of Sale is a contract
between respondents COMELEC and Smartmatic-TIM.
Hence, the proper party to file an ordinary civil action for the
annulment of said agreement before the RTC is the aggrieved party. The fact, however, is neither of the
contracting parties plans to impugn the agreement. On the other hand, the petitioners, not being
parties to the contract, are not real parties-in-interest to file the ordinary
civil action, and their legal standing may be seriously challenged.
On
the other hand, petitioners are one in saying that grave abuse of discretion
was committed by COMELEC in entering into the assailed purchase because it
violates the Government Procurement Reform
Act (RA 9184). Grave abuse of
discretion has been defined as a capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, such
as where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.[21]
In
Francisco, Jr. v. Toll Regulatory Board,[22]
the Court ruled that grave abuse of discretion was committed by TRB for its
act of entering into these same contracts or agreements without the required
public bidding mandated by law, specifically the BOT Law (R.A. 6957, as
amended) and the Government Procurement Reform Act (R.A. 9184).
Clearly,
the averment that the act of respondent COMELEC in entering into the challenged
Deed of Sale constitutes a breach of RA 9184 sufficiently brings it within the
ambit of the remedy of special civil action under Rule 65. Plainly, petitioners availed of the proper
legal remedy.
The rule on hierarchy
of
courts was
not breached
The judicial system follows a
ladderized scheme which, in essence, requires that lower courts initially
decide on a case before it is considered by a higher court. Specifically, under
a judicial policy recognizing the hierarchy of courts, a higher court will not
entertain direct resort to it unless the redress cannot be obtained in the
appropriate courts.[23]
The
Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance.[24]
A disregard of the doctrine of
hierarchy of courts warrants, as a rule, the outright dismissal of the
petition.[25] Direct invocation of the Courts jurisdiction
is allowed only when there are special and important reasons clearly and
especially set forth in the petition. Recourse must first be made to a lower-ranked
court exercising concurrent jurisdiction with a higher court.[26]
Primarily, although this Court, the Court of
Appeals (CA) and the RTCs have concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, and quo
warranto, among other processes, such concurrence does not give the
petitioner unrestricted freedom of choice of court forum. In Heirs of
Bertuldo Hinog v. Melicor, citing People v. Cuaresma, this
Court made the following pronouncements:
This Courts original jurisdiction to issue writs of certiorari is not
exclusive. It is shared by this Court with Regional Trial Courts and with the
Court of Appeals. This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor will
be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general determinant
of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level
(inferior) courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation of the
Supreme Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established policy.
It is a policy necessary to prevent inordinate demands upon the Courts time
and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Courts docket.[27] (Emphasis added.)
But
the Court, while granted original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto
and habeas corpus under the Constitution,
is not precluded to entertain such petitions and, in effect, may forego
application of the rule on hierarchy of courts, provided there are special and
compelling reasons that serve as exceptions to this rule. Here, the urgency and
importance of the issues presented call for this Courts constitutional, yet
primary, duty to resolve these petitions.
While
the RTCs under Sec. 21 of the Judiciary
Reorganization Act of 1980 or Batas Pambansa Blg. 129, as amended, are also
given original jurisdiction over the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction which may
be enforced in any part of their respective regions, in these recourses, there
are critical and important legal issues with far-reaching political
implications that necessitate the immediate, expeditious and final resolution
of the matter. The Constitutional grant of
authority over the said petitions to this Court of course prevails over the
statutory grant of judicial authority to the RTCs or the CA. Hence, it is proper for the Court to take
cognizance of the instant petitions sans the application of the hierarchy of
courts.
Substantive Issues
The
substantive issues, in the main, boil down to the following: (1) whether or not
the execution of the assailed deed of sale without public bidding can legally
be justified under the OTP clause or as an alternative mode of procurement not
requiring a bidding under RA 9184; and (2) whether the COMELEC gravely abused
its discretion when it opted to buy the same PCOS machines and software
despite, as petitioners assert, the deficiencies and glitches experienced in
their deployment and actual operation in the 2010 elections.
Before
disposing of these core issues, some basic premises need to be stated or
restated for perspective:
1.
The OTP is a stipulation in the AES Contract and is also found in the adverted
RFP/TOR issued vis--vis the bidding for the automated 2010 elections project.
The option belongs to COMELEC to be exercised on or before a fixed date. In
mandatory language, the AES Contract requires the exercise of the OTP to be made
not later than December 31, 2010.
Both the AES Contract and the RFP/TOR contain no provision
on option extension, albeit the AES Contract provides under its Art. 19 that: This Contract and its Annexes may be
amended by mutual agreement by the parties. All such amendments shall be in
writing and signed by the duly authorized representatives of the parties.
2. COMELEC knew of
the expiration of the option period, as it in fact received several letters of
Smartmatic-TIM about the fact of expiration, with the latter offering at every
conceivable turn to extend the option period.
3. The
assailed deed of sale partakes of a government procurement of goods, hence
covered, as earlier indicated, by RA 9184. This Court, in MIAA and Gana v. Olongapo Maintenance Services, Inc. and Triple Crown
Services, Inc.,[28]
stated that [t]he rationale behind the requirement
of a public bidding, as a mode of awarding government contracts, is to ensure that the people get maximum
benefits and quality services from the contracts.
Government
contracts shall be void, as against the law and public policy, where a statutory
requirement of open competitive bidding has been ignored.[29]
As a corollary, agreements directly tending to prevent bidding for covered
government contracts may violate public policy.[30]
The Deed of
Petitioners contend that the Deed of
Sale is illegal as it violates Sec. 10 of RA 9184 that generally requires
procurement of goods via competitive bidding. Petitioners are correct, but only
to a point. The pertinent OTP provision reads:
ARTICLE 4
CONTRACT FEE AND PAYMENT
x x x x
4.3 OPTION TO PURCHASE
In the event COMELEC exercises its option to purchase the Goods as listed in Annex L, COMELEC shall pay the PROVIDER an additional amount of Two Billion One Hundred Thirty Million Six Hundred Thirty Five Thousand Forty Eight Pesos and Fifteen Centavos (Php2,130,635,048.15) as contained in the Financial Proposal of the joint venture partners SMARTMATIC and TIM.
In case COMELEC should exercise its option to purchase, a warranty shall be required in order to assure that: (a) manufacturing defects shall be corrected; and/or replacements shall be made by the PROVIDER x x x The obligation for the warranty shall be covered by retention money of ten percent (10%) of every option to purchase payment made.
x x x x
ARTICLE 6
COMELECS RESPONSIBILITIES
x x x x
6.6 COMELEC shall notify the PROVIDER on or before 31 December 2010 of its options to purchase the Goods as listed in Annex L.[31]
The term option, as a civil law concept, has
been defined in Carceller v. CA:[32]
An option is a preparatory contract in which one party grants to the other, for a fixed period and under specified conditions, the power to decide whether or not to enter into a principal contract. It binds the party who has given the option, not to enter into the principal contract with any other person, during the period designated, and, within that period, to enter into such contract with the one to whom the option was granted, if the latter should decide to use the option. It is a separate agreement distinct from the contract which the parties may enter into upon consummation of the option.
On the other hand, an option to purchase may be described
as a contract by which the owner of the
property agrees with another person that the latter shall have the right to buy
the formers property at a fixed price within a certain time. [33] The option is not of itself a purchase, but
merely secures the privilege to buy or the right to buy; its distinguishing
feature is that it imposes no binding obligation to buy on the person holding
the option.[34]
Clearly
then, an option is considered alive and, hence, binding only during the period
designated in the document or contract, as the case may be, where it is
stipulated, unless an amendment extending the option is duly agreed upon during
the existence of the contract. After all, the minds that agree may validly
agree to novate, subject of course to the fundamental tenet that the resulting
agreement or its terms are not contrary to law, morals, good customs or public
policy.[35]
In the
case at bar, since the designated end of the option period, December 31, 2010,
came and went without COMELEC exercising the OTP, this stipulated option clause
had since effectively ceased to exist.
Put a bit differently, COMELECs right to purchase accorded under the
AES Contract is deemed waived or, to be
more precise, lost when it failed to exercise the right in accordance with the terms
of the granting instrument. American
case law holds that where the lease specifies an option to purchase, but the
lessee did not attempt to exercise the option until several months after the
expiration of the term, the option was not exercised in due time and the lessee
lost rights thereunder.[36]
In the exercise of an option for which time is specified, time is of the
essence, unless the agreement of the parties evidences an intent to the
contrary; the court is without discretion to grant additional time.[37]
The
revised OTP Smartmatic-TIM offered to COMELEC cannot plausibly work to extend
let alone revive the option which had meanwhile been rendered functus officio by reason of
non-availment. Even assuming hypothetically the feasibility of amending the OTP
clause by extending its period in the AES Contract on or before December 31,
2010, such extension must be done via a mutual agreement, a unilateral
amendment not being recognized under the AES Contract. The written mutual
agreement for such extension executed by and between COMELEC and Smartmatic-TIM
was of no legal moment, since it was done only in March 2012, or over a year
after the deadline spelled out in the AES Contract.
The option having expired, the March 30, 2012
Deed of Sale between COMELEC and private respondent Smartmatic-TIM cannot be
legally moored to said lapsed option.
The subsequent contract in question is a NEW CONTRACT and not an
extension agreement of the AES Contract dated July 10, 2009 nor of the
stipulation covered by Article 19 of said contract on the option to purchase
the goods described in Annex L of said agreement. Since it is a new contract, then it cannot
derive any benefit from the competitive bidding conducted by COMELEC which gave
life to the AES Contract. The Deed of
Sale in question has to conform to Art. 1306 of the Civil Code which provides:
Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
Since
the stipulations, clauses, terms and conditions in a contract should not
deviate nor conflict with any law, the March 30, 2012 Deed of Sale on its face
is legally flawed and patently illegal, since it violated Sec. 10 of RA 9184 on
the requisite competitive bidding.
Paragraph 2 of said contract stipulated the direct purchase by COMELEC
of the hardware and software subject of Annexes E and E-1 thereof from
respondent Smartmatic-TIM for the price of PhP 1,833,274,457.09, without respondent
COMELEC having conducted the public competitive bidding prescribed by RA
9184. Hence, petitioners are correct in
saying that the purchase is in contravention of the Procurement Act.
Nonetheless, the Court, I submit, is unprepared to impugn the bona fides of the transaction, given the
trying circumstances under which it was made and the benefits inuring to the
government. Indeed, the COMELEC can hardly be faulted for believing that the
extension of the OTP and the execution of the resulting Deed of Sale did not constitute
what Agan v. Philippine International Air
Terminals Co., Inc.[38] considered
as substantial or material amendments that alter the parameters of the mother
contract. Accordingly, it would be inappropriate to impute grave abuse of
discretion on COMELEC for assuming that the extension of the OTP was a
permissible amendment to the AES Contract.
The Deed of
COMELEC parlays the notion that the purchase in question
is analogous to direct contracting, which, under RA 9184, is an alternative
mode of procurement excepted from public bidding rules.
I am inclined to agree.
Conformity with RA 9184 does not
necessarily require competitive bidding. As with all rules, the rule requiring
competitive bidding on government procurements comes with several exceptions.
RA 9184 provides:
ARTICLE IV
COMPETITIVE BIDDING
Sec. 10. Competitive
Bidding. All Procurement shall be done through Competitive Bidding, except as provided for in Article
XVI of this Act.
x x x x
ARTICLE XVI
ALTERNATIVE METHODS OF PROCUREMENT
Sec. 48. Alternative Methods. Subject to the prior approval of the Head of the Procuring Entity or his duly authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Entity may, in order to promote economy and efficiency, resort to any of the following alternative methods of Procurement:
a. Limited Source Bidding, otherwise known as Selective Bidding. - xxx
b.
Direct Contracting,
otherwise known as Single Source Procurement a method of Procurement that
does not require elaborate Bidding Documents because the supplier is simply
tasked to submit a price quotation or a pro-forma (in)voice together with the
conditions of sale, which offer may be accepted immediately or after some
negotiations.
c. Repeat Order. x x x
d. Shopping. x x x
e. Negotiated Procurement. x x x
In all instances, the Procuring Entity shall ensure that the most advantageous price for the government is obtained. (Emphasis supplied.)
Admittedly, an alternative method of procurement is
justified only in highly exceptional cases[39] and
when the following conditions exist:
1. There is prior approval of the Head of the Procuring
Entity on the use of alternative methods of procurement, as recommended by the
BAC; and
2. The conditions required by law for the use of
alternative methods are present; and
3. The method chosen promotes economy and efficiency,
and that the most advantageous price for the government is obtained.[40]
Contrary to the position taken by Justice Brion, however, all the
foregoing conditions exist allowing COMELEC to use an alternative method of
procurement permitted under RA 9184.
Prior approval of the procuring entity
The prior approval of the procuring entity, respondent
COMELEC in this case, was made through COMELEC Resolution Nos. 9376 and 9377,
which manifested respondent COMELECs resolve to purchase the AES hardware and
software covered by the OTP in the 2009 AES Contract between respondents
COMELEC and Smartmatic-TIM. As implied in the resolutions, the purpose of
entering into the Deed of Sale is to avert the despondent possibility that no
suitable AES will be procured in time for the 2013 elections and the nation
will be compelled to conduct a manual election given the inadequate budget
allocated by Congress and the limited time remaining before the elections.
Hence, in its Resolution No. 9376, the COMELEC stated:
NOW, THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Republic Act No. 9369 and other election laws, and after finding the exercise of the Option to Purchase most advantageous to the government, RESOLVED, as it hereby RESOLVES, to exercise its Option to Purchase the PCOS and CCS hardware and software in accordance with Section 4.3, Article 4 of the AES contract between the Commission and SMARTMATIC-TIM in connection with the May 10, 2010 National and Local Elections x x x.
Conditions justifying a Direct
Contracting
As for the second
condition, petitioners
assertion that the subject Deed of Sale does not meet any of the conditions allowing
the use of an alternative method of procurement is without merit. A review of
the facts and the requirements set under the law will verify that the Deed of
Sale executed by respondents is analogous to the Direct Contracting mode defined in the above-quoted Sec. 48(b),
Art. XVI of RA 9184 that is exempt from the more protracted process of
competitive bidding.
Sec. 50,
RA 9184 provides the alternative conditions before a resort to direct
contracting is permitted:
Section 50. Direct Contracting. Direct Contracting may be resorted to only in any of the following conditions:
a.
Procurement of
Goods of proprietary nature, which can be obtained only from the proprietary
source, i.e., when patents, trade secrets and copyrights prohibit others from
manufacturing the same items;
b. When the Procurement of critical components from a specific manufacturer, supplier, or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract; or
c.
Those sold by an
exclusive dealer or manufacturer, which does not have sub-dealers selling at
lower prices and for which no suitable substitute can be obtained at more
advantageous terms to the government. (Emphasis supplied.)
Note that while only one condition is needed to justify
direct contracting, two (2) of the
stated conditions actually exist in the present controversy thereby exempting
the Deed of Sale from the requirement of a prior competitive bidding,
namely: Sec. 50(a) on the procurement of goods of proprietary nature and Sec.
50(c) on the procurement of goods sold by an exclusive dealer that does not have
sub-dealers selling at a lower price and for which a suitable substitute can be
obtained at terms more advantageous to the government.
The Deed of
Under Sec. 50(a) of RA 9184, the Deed of Sale is exempt from competitive
bidding as it involves goods of proprietary nature. Goods are considered to
be of proprietary nature when they
are owned by a person who has a protectable interest in them[41]
or an interest protected by the intellectual property laws. The subject of the
assailed Deed of Sale is the entire first component[42]
of the original AES Contract, which includes the software or the non-physical
portion of the computer; the part that exists only as data or the programs[43]
needed for the PCOS machines consisting of the Election Management System (EMS)
and the PCOS firmware[44]
applications. These applications are computer programs, defined as set[s] of
instructions expressed in words, codes, schemes or in any other form, which is
capable when incorporated in a medium that the computer can read, of causing
the computer to perform or achieve a particular task or result,[45]
that are protected by our laws on copyright from the moment of their creation.[46]
The original works protected by the law on copyright are listed
in Sec. 172 of RA 8293 otherwise known as The
Intellectual Property Code of the Philippines, to wit:
Chapter II
ORIGINAL WORKS
Sec. 172. Literary and Artistic Works.-
172.1 Literary and artistic works, hereinafter referred to as works, are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:
x x x x
(n) Computer programs; and
x x x x
172.2 Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. (Emphasis supplied.)
The argument that Sec. 50(a) of RA
9184 cannot apply because the EMS and the PCOS firmware are mere component(s)
of the entire Automated Election System[47]
that also includes the PCOS hardware, canvassing system and servers listed in
Annexes E and E-1 of the Deed of Sale neglects the fact that this
proprietary software is a bundled software that is sold
together with hardware, other software, or services at a single price.[48] Hence, these proprietary software cannot be procured without the
accompanying hardware on which they are embedded requiring the COMELEC to procure
the PCOS hardware, canvassing system and servers along with the proprietary
Consider
that more than the PCOS machines and the
other hardware, it is these softwarethe EMS and the PCOS firmware
applicationsthat form the core and integral parts of the Deed of
Explaining the function of the
The Smartmatic EMS
is used to create all the base components of an election definition.[50]
The application has the ability to either create election components singularly
using manual labor interface or in a more automated way, in which files
containing many individual components can be imported by the system and laid
out into the systems database structure. The application makes the needed
associations of offices, candidates, parties and contests to create the
election. The
In other words, the EMS dictates the processes by which the PCOS and the
CCS hardware and software interpret the data scanned from the cast ballots and
later accumulate, tally and consolidate all the votes cast. Plainly, the
Thus, the EMS
application which has been manufactured, configured and customized by Smartmatic-TIM[54] to fit the
needs of Philippine electionsand more importantly, tested and tried in a successful Philippine electionsis
protected by our intellectual property laws and recognized as the intellectual
and proprietary product of Smartmatic-TIM. Since this particular program cannot be obtained from any source other
than Smartmatic-TIM, any agreement that involves the purchase of this
With time and budgetary constraints, the
requirements of the technology-neutral principle of our government and the more
supreme endeavor to protect the sanctity of our ballots must be balanced. Relying on an already tested system is better
than taking a chance on a supplier offering a new untested AES, with different
software and hardware components, that could possibly turn out to be of lower
standard in light of the limited budget available and the short period
remaining before the 2013 elections.
The goods
subjects of the assailed procurement are sold exclusively by Smartmatic-TIM
which has no sub-dealer and for which no suitable substitute can be obtained at
terms more advantageous to the government
In addition to the existence of the
condition under Sec. 50(a) of RA 9184 justifying the exemption of the Deed of
Sale from competitive bidding, the Deed of Sale is likewise exempt under Sec.
50(c) of RA 9184. For the condition provided under Sec. 50(c) of RA 9184 to
exist, three elements must be established:
1. The goods subject of the procurement are sold by an exclusive dealer or manufacturer;
2. The exclusive dealer or manufacturer does not have sub-dealers selling the same goods at lower prices;
3. There are no suitable substitutes for the goods offered by another supplier at terms more advantageous to the government.
All
these elements are present in the case at bar.
As
discussed, the specific goods subject of the assailed Deed of Sale are goods of
proprietary nature as they include the Smartmatic EMS, which is proprietary
software that cannot be used, redistributed, or modified without the permission
of Smartmatic. [55] This
software, as bundled with the PCOS firmware[56]
and the PCOS hardware, is owned and distributed exclusively by respondent
Smartmatic-TIM. The distribution and sale of this Smartmatic-TIM bundled
software have not been licensed to any other persons or entities but exclusively
retained by respondent Smartmatic-TIM. Hence, the first element of the
condition set forth in Sec. 50(c) is clearly present.
On the
existence of the second element, petitioners do not deny the statements made by
respondent Smartmatic-TIM during the oral arguments that it has no sub-dealers[57]
and there are no other persons selling the subject Smartmatic software and
hardware,[58] much
less selling them at prices lower than that offered by Smartmatic-TIM under the
Deed of Sale questioned in the case, viz:
JUSTICE VELASCO:
x x x Is SMARTMATIC TIM the exclusive manufacturer or distributor or
you can call dealer of the hard and software that we used in the May 2010
elections and which are now subject of this litigation?
SOLICITOR GENERAL
JARDELEZA:
Yes, your Honor.
JUSTICE VELASCO:
Is there any other
company that can lay claim to the right to use the hardware and software that
was used in these elections?
SOLICITOR GENERAL
JARDELEZA:
The SMARTMATIC
machines used are own[ed] by the company SMARTMATIC. But you are right, Your
Honor, there are other PCOS machines under different branch, owned by different
providers that are in the market x x x.
JUSTICE VELASCO:
How about the software, does any other company make
use of the same software that was used by SMARTMATIC in the last May 2010
elections?
SOLICITOR GENERAL
JARDELEZA:
My understanding,
Your Honor, is each vendor will have
their own hardware and their own software.
JUSTICE VELASCO:
Does SMARTMATIC have subdealers here in the
SOLICITOR GENERAL
JARDELEZA:
I do not believe so, Your Honor.
JUSTICE VELASCO:
And do you believe
that this purchase would be most advantageous to the government?
SOLICITOR GENERAL
JARDELEZA:
Under all the circumstances, Your Honor, we submit so.[59] (Emphasis supplied.)
The existence of the third elementthe
want of any other supplier of a suitable substitute who can offer more
advantageous terms to the government needsis best understood in light of the
following discussion.
It is
plain from the Deed of Sale itself that the remaining 81,280 PCOS units, the
It is
relevant to recall that for the bidding conducted for the automation of the
2010 elections, there was only one other bidder who passed the evaluation of
the technical proposals, Indra Consortium. And for the lease of just 57,231 PCOS machines, as opposed to the 82,000
offered by Smartmatic-TIM, the Indra Consortium proposed the price of PhP 11.22
billion, or PhP 4 billion more than what was offered by Smartmatic-TIM.
Needless to state, no other supplier can match the offer of Smartmatic-TIM which
is bound to sell, not just lease,
more than 81,000 PCOS units at only PhP 1.8 billion. It is, thus, fair to
conclude that no other supplier offering a suitable substitute to the
Smartmatic-TIM system at more advantageous terms to the government can match
this price. Hence, direct contracting with Smartmatic-TIM for the hardware and
software subject of the Deed of Sale is justified under Sec. 50(c) of RA 9184.
Petitioners
argument that the insufficient budget allocated to the COMELEC by Congress and
the limited time remaining before the conduct of the 2013 elections do not
justify the exploitation of this alternative method of procurement allowed by
law is inconsistent with the actual processes involved in the appropriation of
an additional budget for the procurement and the entire competitive bidding
process set by law. This misperception of the practical reasons considered by
COMELEC may well cause a reversion to a manual election with all its evils that
have been significantly, if not completely, removed by the technology supplied
by Smartmatic-TIM.
Based on
the bids submitted for the 2010 elections, the COMELEC is sure that the funds
needed for the procurement of 125,000 PCOS machines to ensure a 600:1
voter-to-precinct ratio is around PhP 12.85 billion. Hence, the budget of PhP 7.96
billion allocated for the entire automation of the 2013 elections, which will
involve not only the procurement of the equipment but also the price of the
allied services, is obviously not sufficient.
So let
us assume that this Court favors the arguments advanced by petitioners and
nullifies the procurement made under the Deed of Sale for not complying with
the rule on the conduct of competitive bidding. This Courts Decision would be
promulgated in June 2012, and probably received by the COMELEC and all
concerned parties in early July 2012. Let us suppose that no motion for
reconsideration will be interposed and COMELEC decides to conduct a competitive
bidding pursuant to the general rule provided under Sec. 10 of RA 9184. For
practical reasons, the COMELEC must, therefore, request for the additional
budget needed for the procurement of a technically superior AES from a
different supplier.
Hence,
it is argued that the COMELEC should be able to convince Congress to grant its
budget proposal for the 2013 automated elections,[61]
i.e., make an additional allocation for the 2013 elections through a special
appropriations act, since, as will be revealed by a review of the facts, the
budget for the 2013 automation has in fact already been approved via RA 10155,
otherwise known as the General
Appropriations Act of 2012,[62]
albeit not in the amount requested by COMELEC but at an amount lower than that
suggested by the DBM. Parenthetically, the COMELEC must first be able to
impress on the executive department the need for additional funds, considering
that Congress may not increase the appropriations recommended by the President
(through the DBM) for the operation of the Government as specified in the
budget.[63]
Yet, let
us assume that the DBM will be convinced of the need of additional funding for
the automation of the 2013 elections and will actually endorse the allocation
of additional funds; the allocation must then undergo the same legislative
process required of all bills.
Like all appropriations, the special
appropriation to augment the budget for the automation of the 2013 elections
must originate from the House of Representatives.[64]
Assuming, yet again, that there is a member of the House who will sponsor the
bill for the special appropriation, the bill might be prepared, at the earliest,
around mid-August 2012.[65]
The bill is then filed for numbering and reproduction. Three days thereafter,
the bill will be included in the Lower Houses Order of Business for first
reading.[66] After
the first reading, it will be referred to the Appropriations Committee for
discussion, evaluation, and even possibly, a public hearing.[67]
The Committee may then propose an amendment to the bill and generate a report
on it.[68]
Upon the approval of the Committee Report, the bill will be transmitted to the
Plenary Affairs Bureau and scheduled for second reading.[69]
During the second reading, the bill is subjected to debates and amendments. The
bill, as amended, will be reproduced and scheduled for a third reading for its approval.
Considering all these steps, the preparation of, and the deliberations on, the
bill could very well take up a good part of September 2012.
Yet, on top of our other assumptions,
let us further assume that upon transmittal to the Senate, the process will be
abbreviated by a certification from the President
to dispense with the requirements of the reading of the bill in separate days[70]
so that the bill is approved by the Upper House in the same month of September
2012. Assuming that no bicameral committee is created, the approved bill is
then transmitted for the Presidents signature. Hence, the bill may become law
at the end of the month. After the required publication,[71]
the special appropriations act increasing the budget for the automation of the 2013
elections could be effective October 2012.[72]
By then, the Certificate of
Availability of Funds required under the Administrative Code of 1987[73]
may be issued and the COMELEC can finalize the bidding documents[74]
which should include the technical specification for (an improved) technology
required for the automation of the 2013 elections. Thereafter, a
pre-procurement conference will be conducted to review, among others, the
criteria for eligibility and the readiness for the procurement.[75]
Next, the invitation to bid is prepared and advertised to inform prospective
bidders of the procurement. The invitation must, hence, be posted in the
COMELEC office and its website for seven calendar days and published in a
newspaper of general circulation.[76] This can take up some weeks in November 2012.
Subsequently,
a pre-bid conference will be called at least 12 days before the deadline of
submission and receipt of bid to discuss with the prospective bidders the
technical and financial component of the contract to be bid, as well as the
eligibility requirement that must be complied with. The maximum allowable
period from the first day of advertisement and the opening of the bids in case
of the procurement of goods is 30 days.[77]
It is, thus, reasonable to assume that the opening of possible bids for the
technology needed for the 2013 elections will fall on December 2012.
From the
opening of the submitted bids, the COMELEC[78]
is given 15 calendar days[79] to
evaluate the proposals and determine the lowest calculated bid or the highest
rated bid.[80] Seven
days after the determination of the lowest calculated bid, a post-qualification
evaluation is conducted to verify, validate and ascertain all statements made
and documents submitted by the bidder with the Lowest Calculated Bid.[81] The
bidder that successfully hurdles this step will be declared the Lowest
Calculated Responsive Bid.[82] Note that the post-qualification evaluation
can last up to 30 calendar days.[83]
Hence, it can be reasonably inferred that the completion of the post-qualification
evaluation and the determination of the winning bidder, if any, who will be
awarded the contract will fall in January 2013 or barely four months before the
2013 elections.[84]
Assuming
that the winning bidder eventually awarded the contract for the automation of
the 2013 elections is a supplier different from respondent Smartmatic-TIM, it
is just practical to customize and tailor-fit this new system to the
distinctive nuances of Philippine elections and, more importantly, educate the
electorate and the concerned poll officers on the process that will be observed
during election day. Note that Smartmatic-TIM and the COMELEC had ten months to
do just that before the 2010 elections. Yet various problems, both caused by
human errors and the shortcomings of the system, are still ventilated before
this Court. Will the shorter period of 4 months be better than the clearly
insufficient ten-month period at anticipating and remedying such problems? To
answer in the affirmative is naivet in the extreme that could usher in confusion
and, ultimately, failure of our exercise of the right of suffrage. In fact, all
the foregoing presents a perfect scenario where bidders actually submit
proposals to contract with the COMELEC and one of them is eventually declared
to have successfully passed the technical, financial and post-qualification
tests. What will happen if this ideal scenario does not transpire? Are we to go
back to manual elections?
As a matter of practical convenience,
courts of law have applied laws in a manner that would avoid consequential
mischief.[85] The
failure of our elections or a reversion to the snail-paced and problem-laden
manual method of election will not only be a mischievous, but a disastrous,
consequence, if this Court shall refuse to recognize that, given the time and
the budget for the 2013 elections, no supplier can provide a suitable
substitute for the Smartmatic-TIM AES at more advantageous terms to the
government so that the COMELECs application of the allowed alternative method
of procurement is justified.
The assailed
Deed of
and obtains
for the most advantageous price
In light of the foregoing discussions
that explain the conditions that allow respondent COMELEC to enter into a
contract analogous to Direct Contracting as an alternative method of
procurement under RA 9184, the economy and efficiency of the avenue chosen by
respondent COMELEC are readily apparent, especially as it cannot be denied that
the Deed of Sale offers the most advantageous price obtainable for the
government.
As
stated, Smartmatic-TIM offered, and still offers, the least expensive AES for
the automation of Philippine elections. It is selling more than 80,000 units of
PCOS hardware and software at less than 50% of the original lease price for the
same number of units, which was the lowest responsive bid for the automation of
the 2010 elections. The only other bid that passed the technical evaluation,
the Indra Consortium, offered to the government the lease of an AES consisting
of only 57,231 PCOS units at a price PhP 4 billion more expensive than that
offered by Smartmatic-TIM. Added to this, Smartmatic-TIM shouldered the storage
price of the PCOS units and offered them for sale without considering inflation
or putting a price on the enhancements and modifications demanded by COMELEC.
If, as
argued by petitioners, the government can do better than settle on the
Smartmatic-TIM AES and pursue the assailed Deed of Sale, COMELEC requires more
money than what it has been provided by the Congress for the entire election
process slated in 2013 to ensure that the competitive bidding sought by
petitioners will not turn out to be a futile and empty exercise. Yet, as
previously illustrated, obtaining more funds from Congress and going through
with competitive bidding will eat up the precious time necessary to test and
modify a new AES, if any, and prepare and educate the electorate and poll
officers on its operation to prevent any human blunders that might lead to an
erroneous declaration of the results of an election.
Certainly, COMELEC cannot produce the components of
an AES out of thin air, which is what the COMELEC is wont to do given the
budget earmarked by Congress that falls at least PhP 5 billion short of the
original amount requested, leaving only PhP 2.2 billion for the procurement of
a new and, as demanded by petitioners, flawless AES for the 2013 elections.
Even if the COMELEC has the capacity to execute such a financial miracle, it
has but a few months to pull it off.
On one hand, the COMELEC has the awesome
responsibility to conduct and ensure an orderly and peaceful election. On the
other hand, Sec. 1 of RA 9369 provides that [t]he State recognizes the mandate
and authority of the [COMELEC] to prescribe the adoption and use of the most
suitable technology of demonstrated capacity taking into account the situation
prevailing in the area and the funds available for the purpose. Given these
twin postulates, it is, at once, understandable why COMELEC decided on an
alternative method allowed under the law that warrants the most advantageous
price for the government in the most efficient manner, within the least of
time. Sticking it out with Smartmatic-TIM may be far from ideal. But grave
abuse of discretion cannot surely be laid on the doorsteps of the COMELEC for
choosing an already tested AES rather than gamble the nations fate on a new,
untested AES, if any, which its available money can buy from a different
supplier, just a few short months before the elections. Grave abuse of discretion
denotes a capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. Any suggestion that COMELEC acted under the premises out
of whim is too simplistic and sweeping for acceptance.
As pointed out by petitioners, the elections
occasion the exercise by our citizens of their fundamental right to choose the
persons who will hold the reins of our government and lead its charge for a
better future. It is, therefore, much safer, if not better, to err in the
conservative than wager our nations future on a new and experimental AES each
time glitches occur in the system used in an electionglitches that are
actually attributable to poll officerswhich have never been proved to cause
an erroneous proclamation of an un-elected candidate, nor cause cheating,
terrorism and other fraudulent election activities. The glitches have in fact
already been remedied.
Parenthetically, there is no such thing as a
perfect system and to search for one is a futile exercise. The best that can be
hoped for is a system that reflects the choice of our electorate and that was
what the Smartmatic-TIM system did. As resolved by the COMELEC, it is,
therefore, not prudent to switch to another AES in the hopes of
improving on the Smartmatic-TIM system in, again, just a few months before the
elections with such limited funds.
The Court, in my view, cannot just set aside the
familiarity of the electorate and the concerned poll officials with the
Smartmatic-TIM system that abbreviates the learning curve of all the parties
concerned and so minimizes the errors attributable to the variations and
differences offered by a new AES. If the aim is, in fact, the approximation of
a perfect election system, sufficient time must be allocated for the education
of the voters, the election officials and the candidates in the workings and
processes of the system. Needless to state, a few months is not enough to gain
familiarity, let alone a thorough knowledge of another AES whose true worth is
yet to be tested on the ground.
Indeed, the method of procurement chosen by
COMELEC, given the prevailing conditions and the constraints imposed on COMELEC,
provides the most efficient and economical manner that guarantees the conduct
of an automated election in 2013. Procuring the same, tested AES from the
supplier who helped the conduct of a successful and peaceful election in 2010
dispenses the need for additional funding and so reserves the remaining time
before the elections for the conduct of essential modifications and
enhancements on the Smartmatic-TIM AES that could remove the problems
complained of by petitioners.
I submit that all the conditions that allow
respondent COMELECs resort to an alternative method of procurement under RA
9184 exist, and COMELECs execution of the assailed Deed of Sale pursuant to
its recognized authority to use the most suitable technology of demonstrated
capability taking into account the situation prevailing in the area and the funds
available for the purpose is justified by a number of reasons. The respondents
themselves found it fit to incorporate these reasons in the deed in question:
WHEREAS, after public bidding, the [COMELEC] and
[SMARTMATIC-TIM] had executed on 10 July 2009 a Contract for the Provision of
an Automated Election System for the May 10, 2010 Synchronized National and Local Elections (AES Contract)
x x x;
WHEREAS, [COMELEC] had already used the
automated election system (AES) supplied by [SMARTMATIC-TIM] for the May 10,
2010 elections, and [COMELEC] had already invested approximately 2/3 of the
cost of the hardware and software comprising the AES under the AES Contract
which was on a lease with an option to purchase basis;
WHEREAS, Congress has allotted a limited budget
of P7,000,000.00 for the use of [COMELEC] for the conduct of the next elections
on May 13, 2013, which is insufficient to purchase and/or lease a new set of
voting machines and other hardware and software different from the AES supplied
by (SMARTMATIC-TIM);
WHEREAS, [COMELEC], including the Board of
Election Inspectors and Board of Canvassers, the Filipino voting population and
other election stakeholders have a familiarity, working experience and general
acceptance of the AES used during the May 10, 2010 elections;
WHEREAS, the resolutions in electoral protest
cases confirm or validate the accuracy of the results and the reliability of
the AES used during the May 10, 2010 elections x x x.
The
advantages and benefits from the purchase of the hardware and software in
question are further amply elucidated and satisfactorily demonstrated in
COMELEC Resolution No. 9376:
WHEREAS, in preparation for the public bidding of the AES for the 2013 elections, the Commission submitted its proposed budget to the Department of Budget and Management in the total amount of Php 10,436,300,399.00 for the procurement of the 2013 AES through lease;
WHEREAS, for fiscal year 2012, the Congress approved the amount of Php 7,000,000,000.00 for the procurement of the 2013 AES;
WHEREAS, since there are several essential services that have to be subjected to public bidding in the year 2012 to ensure that the same are in place either by December 2012, or by the start of 2013, the Commission is constrained to utilize its 2012 budget for the public bidding of, and award of contracts for, said essential services in order to avoid delays that will adversely affect the preparations and implementation of the AES project;
WHEREAS, due to the limited budget approved by the Congress for fiscal year 2012, there is a need to determine all available means of acquisition that the Commission may take to ensure the successful implementation of the AES in 2013;
x x x x
WHEREAS, the COMELEC Advisory Council, in its Resolution No. 2012-001 dated January 12, 2012, recommended, among other things, that for any purchase of the AES, consideration must be given by COMELEC to the cost of storage, facility for storage, reliability of hardware over time, and cost of money;
WHEREAS, to determine the available means of acquisition in relation to the 2012 budget approved by the Congress, the Commission took into consideration the above CAC recommendations, including the number of voters in a clustered precinct, the total number of precinct-level counting machines to be deployed, the services needed, and the required budget for the purpose;
WHEREAS, on the basis of the lowest calculated responsive bid obtained during the public bidding conducted in connection with the May 10, 2010 automated national and local elections, the following modes were ascertained:
|
No. of voters per precinct |
No. of machines |
Total cost |
|
600 |
125,000 |
12,854,731,547.00 |
|
700 |
117,000 |
12,138,033,856.00 |
|
800 |
102,000 |
10,816,666,036.00 |
|
1,000 |
82,200 |
9,062,460,242.00 |
WHEREAS, said amount of Php7,000,000,000.00 as approved by the Congress is insufficient to procure the AES through public bidding under any of the above modes;
WHEREAS, only the amount of approximately Php4,802,870,000 is necessary should the Commission proceed with the exercise of the Option to Purchase, and with the conduct of public biddings for other services;
WHEREAS, the cost for the deployment of hardware, official ballots and ballot boxes, an activity that shall be undertaken by the Commission, is estimated, based on the expenses incurred during the 2010 elections, at P2,080,000,000;
WHEREAS, the estimated over-all total cost for technology (hardware and software), all services, and deployment is Php6,882,870,000, which amount is within the Php7,000,000,000.00 budget approved by the Congress;
WHEREAS, although Systest Labs, Inc. (now SLI Global Solutions), the established International Certification Entity that reviewed the AES for the 2010 elections, has determined that the critical and major issues on the Voluntary Voting System Guidelines (VVSG) of the 2010 AES have already been resolved, there are fixes and enhancements being requested by the Commission on the AES to be used in the 2013 elections;
WHEREAS, the final Scope of Work for the enhancements being requested by the Commission on the AES to be used in the 2013 elections has already been completed;
WHEREAS, the Commissions Project Management Office for the May 13, 2013 National and Local Elections has submitted an Inspection Report showing that the PCOS used in the May 10, 2010 elections are properly stored at the Cabuyao Warehouse where said PCOS are currently stocked.
In view of the foregoing, I find that
respondents have convincingly shown that said acquisition would definitely be
most advantageous to the government.
Compliance with Minimum System
Capabilities under RA 9369
Petitioners
contend that the deficiencies observed during the actual operation of the PCOS
machines in the 2010 elections would suffice to nullify the Deed of Sale over
the remaining PCOS machines. I disagree.
The
issue on the systems qualification based on Sec. 6 of RA 8436, as amended,[86] has
earlier been raised in Roque, Jr., in
which petitioners maintained that [t]he PCOS machines [thus] offered by
private respondents x x x do not satisfy the minimum system capabilities set by
[RA] 8436 (as amended by [RA] 9369).[87] Disposing of that contention in Roque, Jr., the Court held:
From the records before us, the Court is fairly satisfied that the Comelec has adopted a rigid technical evaluation mechanism, a set of 26-item/check list criteria, x x x to ensure compliance with the above minimum system capabilities.
The SBAC Memorandum of June 03, 2009, as approved by Comelec Res. 8608, categorically stated that the SBAC-TWG submitted its report that the TIM/Smartmatics proposed systems and machines PASSED all the end-to-end demo tests using the abovementioned 26-item criteria, inclusive of the accuracy rating test of at least 99.955%.
x x x x
Given the foregoing and absent any empirical evidence to the contrary, the Court, presuming regularity in the performance of regular duties, takes the demo-testing thus conducted by SBAC-TWG as a reflection of the capability of the PCOS machines x x x.
Apropos the issue immediately above, the
Courts disposition thereon has the force of res judicata.
Res judicata
comprehends two distinct concepts: (1) bar by a former judgment; and (2)
conclusiveness of judgment.[88]
It is the latter, conclusiveness of judgment, which is relevant to the case at
bar.
Conclusiveness
of judgment states that a fact or question which was in issue in a former suit
and was there judicially passed upon and determined by a court of competent
jurisdiction, is conclusively settled by the judgment therein as far as the
parties to that action and persons in privity with them are concerned. The fact
or question cannot be again litigated in any future action between such parties
or their privies, in the same court or any other court of concurrent
jurisdiction on either the same or different cause of action, while the
judgment remains unreversed by proper authority.[89]
The ruling in Roque, Jr. has yet to
be overturned. Accordingly, this Courts
pronouncement thereat as to the compliance of the offered PCOS machines with
the minimum system requirements[90] set
forth by law operates as a judgment that is conclusive upon that particular
matter.
A view, however,
has been advanced that the AES had yet to be subjected to various acceptance
tests. Petitioners now come before Us presenting a number of reported 2010
problems or glitches which cropped up after the Decision in Roque, Jr. had been promulgated.
To support their posture about COMELEC gravely abusing its
discretion when it decided to purchase the PCOS machines and allied
paraphernalia, petitioners present quite a number of issues which, at first
glance, tend to make a plausible case of grave abuse of discretion on the part
of COMELEC. The Court, I believe, should no longer delve into and belabor these
purely factual issues, relating as they do to the manner the 2010 elections
were conducted. Also, supporting this
particular call is the assurance by the Solicitor General, representing the
COMELEC during the oral
arguments, that major glitches and shortcomings adverted to by the petitioners
have been identified and corrected[91]
as part of the COMELECs preparations for the 2013 electoral exercise. Absent
compelling proof to the contrary, the Court must accord positive credence to
the assurances of COMELEC. Members of the Commission are accountable officers,
if not to the law, then to history. They
have in their favor the presumption of regularity and good faith.[92]
If only for these factors, the Court would be extending to COMELEC the benefit
of the doubt.
Lest it
be overlooked, the COMELEC and Smartmatic-TIM ably explained the reasons for
the occurrence of the lapses and glitches complained of. The Post-Election
Report of CAC corroborates the explanation. Moreover, even the findings of the
CAC, the TWG and the SLI Global Solutions,[93]
an international certification body, support a conclusion that the problems
thus encountered in the 2010 elections are not entirely attributable to the
system itself. And to recall the CACs final verdict, the AES [offered by Smartmatic-TIM] ultimately did work.[94]
Security Features of
the AES
Among the security features, the absence of which petitioners advert to
in their bid to nullify the subject deed of sale, are:
1.
Disabled UV mark
detection function;
2.
CF Card
configuration problem;
3.
Restrictive
source code review environment;
4.
Random Manual
Audit result variance;
5.
Open console port
found in the PCOS machine;
6.
Non-demonstration
of the re-zero function;
7.
Lack of a
voter-verified paper audit trail; and
8.
Absence of a
digital signature.
To petitioners, the foregoing alleged
problems and glitches evince a grave disregard of the minimum requirements set
forth in Sec. 6 of RA 8436, as amended, which pose a threat to the integrity
and veracity of the results of the 2010 elections.
For their part, respondents insist
that these problems were identified prior to the conduct of the 2010 elections
and, in fact, had already been addressed through the implementation of
corrective measures, e.g., the purchase of hand-held UV lamps to replace the
use of the UV detection capability of the PCOS, among others, which will be
discussed below. Petitioners, however, would have the Court believe that the
remedial measures implemented by the COMELEC during the 2010 elections are not
sufficient to remedy the reported deficiencies. They also point out that these
alleged flaws are inherent in the hardware and software which prove that the
AES lacks the demonstrated capability required by law, thus warranting the
invalidation of the sale.
Again, I do not agree. The aspects of
the AES to which respondents applied remedial measures during the conduct of
the 2010 elections, to me, do not affect the integrity and reliability of the
system used and will be used. I shall explain.
Disabled UV mark
detection function
Petitioners
ascribe fault upon the AES because of the non-use of the UV verification
function of the PCOS machines. Had this function been used, the PCOS machines
would have automatically detected the authenticity of the ballots upon being
fed into the machine by the voter. This function, however, was disabled by
Smartmatic-TIM upon the order of the COMELEC.
To
explain the reason behind disabling the UV, respondents say that, contrary to
petitioners position, the PCOS machines have UV-reading functionality so that
the machine itself would automatically confirm the authenticity of a ballot.
However, in the 2010 elections, tight deadlines brought about by legal
impediments (a TRO, for instance was issued in the Roque, Jr. case) necessitated fast-tracking of the UV-mark printing
with less UV-ink concentration, resulting in unreliable UV detection. As aptly explained
in the Oral Arguments,[95]
the printing had to be rushed. To expedite the printing process, they had to
reduce the amount of UV ink, because if less ink would be injected by the
printer, then the time it would take for the printer to complete the printing
process would be shorter.[96]
This reduction of the amount of ink to be injected caused insufficient ink
concentration on the ballots. Thus, during the Fast Testing and Sealing (FTS),
the PCOS machines were unable to read the UV mark due to this inadequate amount
of ink concentration, causing the PCOS machines to reject authentic ballots.
This rejection of authentic ballots due to the insufficiency of the UV ink
concentration, plus the fact that printing had already begun and they were
working under tight deadlines, prompted the COMELEC to decide to deactivate the
UV mark detection feature of the PCOS machines, and, as a remedy, the COMELEC
procured handheld UV lamps for each polling precincts Board of Election
Inspectors (BEI) to use on election day to verify each ballots authenticity
before handing it to a voter.[97] Respondents
add that if printing was done properly and in a timely manner, nothing can
prevent the COMELEC from utilizing the UV scanning capability in future
elections. In any event, there are other means implemented by COMELEC to verify
the authenticity of the ballots, such as the unique barcodes which made sure
that the PCOS machines will recognize and accept each ballot only once. This
feature, together with the UV marking, prevented the acceptance of fake
ballots.
It is
also well to note that this problem with the UV mark detection is not
attributable to the machine. It was sufficiently established by respondent
Smartmatic-TIM that the PCOS machines have a UV detection capability, only that
it was not utilized. Also, the UV mark
detection is not a statutorily mandated requirement, it merely being an
additional AES security feature exacted by the COMELEC.
CF Card issues
With
regard to the data storage and encryption procedures, an allegation has been
made that the CF Card, upon which the data collected from the ballots are
stored, is not a Write-Once, Read-Many (WORM) device. Thus, there is a
possibility that different files may be stored in the CF card other than those
scanned by the PCOS after the ballots were fed by the voters.
This
appears to be a serious matter which can affect the integrity of the results of
the elections, for, if the results generated were not based on the actual files
scanned by the PCOS from the ballots, the machines will fail to transmit the
authentic results. I, however, give credence to the explanation offered by
respondents, which is also supported by the Final Report of the
On the
issue of the alleged misconfiguration of the CF card, petitioners insist that
the CF Cards were defective because during the FTS, the PCOS improperly read
the side of the ballot where the local races were reflected. This problem was caused by COMELECs decision
to change the layout of the ballots local side from single to double space and
further exacerbated by the fact that this change was belatedly communicated to
Smartmatic-TIM. Hence, a week before the elections when the FTS was being
conducted, the local side of the ballot was not properly read by the machine
because the CF card was configured to read a single-spaced ballot style. To
address the problem, Smartmatic-TIM retrieved the CF cards deployed as well as
ordered additional ones, because not all of the CF cards from each precinct could
be retrieved on time. The CF cards were then re-configured and re-deployed.
There were no reported problems afterwards.
This, to
me, is a clear case of lack of coordination between the two entitiesSmartmatic-TIM
and COMELEC; it has nothing to do with the efficiency of the PCOS machine. As
it were, it was not a case of misconfiguration of the CF Card, but a
reconfiguration necessitated by the spacing change in ballot style.[99]
Restrictive environment
for the source code review
RA 9369 provides that [o]nce an AES technology is selected for
implementation, the [COMELEC] shall promptly make the source code[100] of that technology available and open to any
interested political party or groups which may conduct their own review thereof.[101]
In compliance with this, the COMELEC had invited interested political parties
and groups to a meeting to discuss the manner of the source code review.[102]
The CAC and COMELECs Technical Evaluation Committee (TEC) issued a joint
resolution, recommending a set of guidelines for the conduct of the review,
upon request of the COMELEC, including a rule that the source code cannot be
taken out of the COMELECs premises. The latter subsequently prepared a room
with two (2) computer terminals in its Project Management Office for the
conduct of such review. The Center for People Empowerment and Governance, as
well as other groups, found the guidelines to be too stringent and the time for
review too short or too near to the coming elections such that if there were any
findings, there would not be enough time to modify the source code.[103]
For petitioners, this is a blatant violation of RA 9369. I, however, have a
different opinion.
Here, what the law required of the
COMELEC was to make the source code open to review, which it did. Only that,
and rightly so, stringent restrictions were imposed. In its Post-Election Report, the CAC gave the following reasons why the
source code was to be kept only within COMELECs premises: (1) it would violate
the intellectual property rights of Smartmatic-TIM; and (2) it would make it
easier for computer hackers to exploit vulnerabilities in the system, if any.[104]
The reason behind the restriction
is valid; thus, the COMELEC cannot be faulted for having employed such measures
to minimize, if not totally prevent, the source code from being accessed by
unauthorized persons. Unauthorized access to the source code can open the
entire AES to tampering, cheating and other unpredictable danger that hackers
or computer programmers can do in order to destroy the reliability of the
system, or worse, prevent the use of the AES itself. Thus, protection and
preservation of the source code are paramount considerations in the automation
of the elections. Whether the political parties or interested groups would
avail themselves of that opportunity, albeit in a controlled environment, is
discretionary upon them. I cannot favor petitioners implied plea for a
relaxation of the procedure for examining the source code just to indulge the
desire of these groups for leniency in the source code review. To do so would
open the very brain of the AES to the possibility of being infected, which may
ultimately cause a defect in the system, or worse, its death. The COMELEC is
not under any obligation to ensure that these groups will conduct a review. Its
only mandate, as clearly set forth in the law, is to promptly make the source code of that technology available and open to
any interested political party or groups which may conduct their own review
thereof.[105]
In addition to the foregoing, this is
an issue not attributable to the AES itself as this pertains to the procedure
and restrictions imposed by the COMELEC, CAC and TEC on the system for the
source code review. The restrictive environment created for the review of the
source code by the COMELEC has nothing to do with the PCOS machines or the AES,
but more with the desire of the COMELEC to preserve the integrity of the code
through the implementation of strict security measures. The role of the source
code in the AES is too important to be put at risk just to give in to the
desires of these groups that refuse to conduct the review merely because of
tight security.
Random Manual Audit
result variance
Petitioners
argue that based on the Report of the TWG-RMA, the system count resulted in an
accuracy rate of only 99.6%, or 80 votes erroneously counted for every 20,000
votes, when the TOR[106]
and other bid documents stipulated an accuracy rate of 99.995%.
For
their part, to which I agree, the COMELEC and Smartmatic-TIM explained that
what the TWG-RMA meant in its conclusion referred to above was that the
electronic and manual counts coincided 99.6% of the time.[107]
The PCOS machines were tested four (4) times by the Special Bids and Awards
Committee (SBAC) and TWG, and in all those times, the accuracy rating of
reading the ballots was 100%.[108]
Even SLI Global Solutions reported that the PCOS had a 100% accuracy rate.[109]
Also, the validation teams discovered that:
In most cases of large
variances, errors were due to human factors such as the inability of the [Random
Manual Audit Team] (RMAT) to distinguish over votes and ambiguous markings.
There were also instances when the transposition errors were due to miscopying
the numbers from the ARs to the Minutes/Reports, miscopying the
This only goes to show that the
machine count is superior to the manual count because the machine will only
count the way it is programmed to, while manual counts are subject to a number
of factors which ultimately lead to the commission of errors, as what happened
during the RMA. This inference is reflected in the conclusion presented by the
TWG, viz:
If the Random Manual Audit is to make sure of the accuracy of election results and preserve electoral integrity, then it must be clearly pointed out from the beginning that the margin of variance is a computation of the difference between the manual count and the machine count. Hence, it is a test between man and machine. While the tolerance level set for the accuracy of the machine is a test that involves only the machine. The margin of variance indicated by the NSO as equivalent to 1% is based on the accuracy rate of 99% (the allowable rate used in statistical analysis) cannot thus be used as the basis of comparison to the 99.995% accuracy rate of the PCOS machine set by the Request for Proposals (RFP) as a requirement for the Bidding Process of the AES technology.[111] (Emphasis supplied.)
Additionally,
the
Despite delays, once completed, the RMA did not show significant discrepancies in results. As reported on May 29 by the Parish Pastoral Council on Responsible Voting (PPCRV), which was responsible for reporting on the RMA to COMELEC, with 1,063 audits completed, minimal variance had been determined. There was 100 percent accuracy in 80 percent of RMA tallies on a candidate-by-candidate basis, while 6 percent of precincts recorded single digit variances. The largest discrepancy reported between digital and manual results was 99:352 on the printed [ER] as compared with 253 on the audit report. Because of the similarity in numbers, however, it seems likely that this was due to a transcription error made by the BEI.[112] (Emphasis supplied.)
The
Final Report also stated that according to the COMELEC, discrepancies were generally attributable to errors in manual
transcription by the RMA team when recording the totals to the AES and RMA
tallies.[113]
This, in
my view, is an issue not innate in the machines, but inherent in a system where
what are to be compared are machine results and results from a manual count
performed by the RMATs. Ergo, there can
be no other conclusion than that the AES meets the required accuracy rate, and there
are these foregoing reports[114]
and tests[115] upon
which this conclusion is based.
Existence of a
Petitioners
strongly question the existence of a console port in the PCOS machines which
allowed ordinary laptop computers to be attached and, even without a username
or password, access the machines operating system. This, according to them,
made each PCOS machine susceptible to unauthorized access. In fact, the Senate
Joint Forensic Team (SJFT), in its Final Report to the Senate, said that it was
able to access the PCOS using an ordinary laptop.
Respondents concede that there exists
a console port in the machine through which a device may be attached in order
to gain access to the machine. Respondents explain, however, that these ports
were mechanically sealed or disabled[116]
during the 2010 elections. Also, in the Oral Arguments, respondents manifested
that, to address the complaints regarding the existence of these ports, even
though there were no recorded incidents that indeed PCOS machines were accessed
through such, the port shall be both mechanically and electronically disabled
as well so that the software will no longer allow access to the PCOS through
the port. The console port will no longer be functional so to speak.[117]
To me, the measures that respondents
commit themselves to employ this coming 2013 elections are sufficient to
address the complaints of petitioners as regards this matter. It must also be
noted that there were no reported incidents of unauthorized access of the
machines through these ports and that the poll watchers and BEIs are there to
see and ensure that no such access is done.
Voter-Verified Paper
Audit Trail
Petitioners insist that the AES lacks a voter-verified paper-audit trail
which is expressly required by law. A voter-verified paper-audit trail consists
of physical paper records of voter ballots as voters have cast them on an
electronic voting system.[118]
This is used as a record of each set of votes cast by the voters so that, after
the elections, the electronically generated results can be audited through a
comparison with these paper records.
Anent
this issue, it is important to note that the AES in question is still
paper-based, unlike a Direct Recording Electronic[119] election
where the vote is cast directly on a machine by the use of a touchscreen,
touchpad, keypad or other device, and the machine records the individual votes
and calculates the vote totals electronically;[120]
thus, without a printed receipt, it leaves no paper-trail which can be utilized
for audit purposes.[121]
In the 2010 elections, what were automated were only the counting, tallying,
canvassing and consolidation of results, excluding the casting of votes by the
voters. Thus, even without a form of receipt which reflects the choices made
by the voter, still, the availability of the ballots themselves is sufficient
to allow an audit of the election results generated by the AES. The PCOS also
has an available screen-display feature that allows voters to verify how the
PCOS had read and interpreted their ballot, a capability that also provides for
notification of null votes. At the request of COMELEC, however, this feature
was disabled in the 2010 elections,[122]
because to have the voters view their votes cast on the LCD screen would
further aggravate the already lengthy queues in each polling precincts. Plus
this is a mere additional feature which is not required by law.
During
the 2010 elections, there were not only electronic records generated by the
PCOS machines. As mentioned above, there also existed ballots actually filled in
by the voters, which were securely stored in ballot boxes. Thus, the alleged
lack of voter-verified paper-audit trail is not a glitch in the PCOS machines.
In fact, this matter does not pose a problem, since the system adequately
provides for materials, i.e., the ballot themselves, with which the
electronically generated results can be compared.
Re-Zero Function
Petitioners
fault the system for such instances during the 2010 elections where the COMELEC
noticed that some PCOS machines transmitted only ten (10) results. This means
that the machines transmitted results different from those actually obtained
from the ballots fed into the PCOS machines.
Without
knowing the procedure for transmission and the source from which the 10 results
originated, it may appear that the AES does have a glitch that affects the
integrity and accuracy of the election results. However, respondents COMELEC
and Smartmatic-TIM were able to enlighten the Court as to the cause of this
problem.
A week
before the 2010 elections, the COMELEC and Smartmatic-TIM used ten (10) test
votes to conduct the FTS of each PCOS machine. These results were stored in the
CF cards of the PCOS machines. Thereafter, the BEIs were required to use the
transmit function of the PCOS machines to erase the files obtained during the
FTS. Some BEIs, however, failed to activate this transmit function; hence, on election
day, when the results were transmitted to the CCS, COMELEC noticed that some of
the transmitted results were only ten (10), reflecting the votes counted during
the FTS.[123]
Respondents then identified that the re-zero function was not activated causing
the ballot images stored in the CF cards during the FTS to be retained, instead
of being deleted, and consequently, transmitted to the CCS.
As can
be readily seen, this re-zero issue was caused by the BEIs failing to activate
the transmit function. Also, petitioners did not present any objection to the
explanation made by respondents as well as to their conclusion that this was
due to the BEIs error. Nor did petitioners present a different explanation for
the non-activation of the re-zero function. As such, this problem is clearly
not a bug in the software or a glitch in the system but a failure on the part
of some BEIs to execute their task of re-zeroing the CF cards. Clearly, this is a case of human error, not a
defect inherent in the AES. To remedy this, respondents manifested that they
intend to automatically re-zero the machines upon closure of the FTS.
Digital Signatures
Lastly, as regards the digital
signatures, Sec. 25 of RA 9369 reads:
Sec. 25. A new Section 30 is hereby provided to read as follows:
Sec. 30. Authentication of Electronically Transmitted Election Results. The manner of determining the authenticity and due execution of the certificates shall conform with the provisions of [RA 7166] as may be supplemented or modified by the provisions of this Act, where applicable, by appropriate authentication and certification procedures for electronic data, electronic documents and electronic signatures as provided in [RA 8792] as well as the rules promulgated by the Supreme Court pursuant thereto.
Thus, Sec. 25 of RA 9369 requires a
form of authentication which is concretized in the form of a digital signature.
A digital signature[124]
is an electronic signature[125]
consisting of a transformation of an electronic document or an electronic data
message using an asymmetric or public cryptosystem,[126]
such that a person having the initial untransformed electronic document and the
signers public key can accurately determine: (1) whether the transformation
was created using the private key[127]
that corresponds to the signers public key;[128]
and (2) whether the initial electronic document had been altered after the
transformation was made.[129]
An
electronic signature may come in two forms: a distinctive mark, characteristic or sound in electronic form; or a method or procedure employed by a
person with the intention of approving or authenticating an electronic
document.
COMELEC
Resolution No. 8786[130]
shows the process by which the BEI Chairperson and the BEIs utilize the
machines digital signature through the use of a proprietary token known as the
iButton, which contains a unique PIN or password (private key) assigned to the
specific voting precinct, and any data that would not comply with the digital
signatures are simply not canvassed.[131]
This procedure was followed in the 2010 elections.
For the
2010 elections, each PCOS machine contained a built-in certificate that was
used to encrypt and digitally sign the election returns (ERs) upon transmission
to the CCS. The digital signatures for the 2010 elections are generated by the
RSA algorithm, a 1,024-bit private key. These digital signatures are used through
the concurrence of the following: the digital certificates encrypted or
programmed in the iButtons, the signature embedded in the CCS servers, the
encryption of the signature in the internal memory of the PCOS machines, and
8-digit PINs used to activate the PCOS. The PCOS can only be started with the
use of the CF card, the iButton and the PINs which should be specifically
matched with each other and assigned to a particular precinct. When the polls
are closed through the use of the same iButtons and PINs, the ERs will be
generated and the PCOS will also generate a hash code,[132]
which will be encrypted using the RSA asymmetric encryption algorithm and the
digital certificate in the iButton which will be appended to the ER file.
Thereafter, the file is encrypted using a 256-bit symmetric key previously
loaded to each machine by Smartmatic-TIM. With this procedure, the ERs are
digitally signed and encrypted giving them the integrity, confidentiality and
non-repudiation properties and are, thus, secure for transmission. Once
completed, the ERs are transmitted to the CCS, the Central server and the KBP
server. The CCS, to which a digital certificate verification program was
previously loaded by Smartmatic-TIM, together with the encryption key and the
digital certificates, will now verify the ERs transmitted through decryption.
If the transmitted ERs pass this rigid verification procedure, the results will
be imported to the databases and it is only then that the results will be
canvassed.[133] The
Chairperson of the BEI or the person authorized by the COMELEC, in effect,
digitally signs[134] the
ER with the PCOS machines unique digital signature automatically upon
transmission,[135] and
the CCS verifies the authenticity of the digital signature borne by each ER
transmitted.
With the
foregoing discussion on the use of the digital signatures for the 2010
elections, it is certain that there was compliance with the mandate of the law.
The digital certificates[136]
placed in the iButtons and 8-digit PINs, as well as the procedure employed with
the intention of providing a way of digitally signing the document implemented
through the use by the BEI Chairperson of the iButton and the BEIs entering the
PIN issued by COMELEC in order to convert the ER generated into a digitally
signed document, a pre-requisite for transmission and canvassing, all in
accordance with COMELEC Resolution No. 8786, sufficiently comply with the
requirements of the law.
Under
the RFP for the 2010 automation project, it was expressly required that the
system shall transmit digitally signed
and encrypted ERs and reports enabled by public/private key cryptography to
provide authenticity, integrity, and non-repudiation utilizing at least a 128-bit
encryption scheme.[137]
During the oral arguments, private respondent explained that there were digital
signatures although it used the RSA asymmetric encryption algorithm and the
file is encrypted using a 256-bit symmetric key loaded earlier in the machine.[138] I believe that this slight deviation from the
protocol requested by COMELEC is a minor error which did not affect the
integrity and accuracy of the kind of digital signature used in the 2010
elections. The use of an encryption scheme algorithm different from that
required by the COMELEC is insignificant in such a way that it is not
sufficient to invalidate the sale on the basis that the AES is utterly
defective. Moreover, petitioners failed to prove that this variance affected
the results of the elections and that there were results or proclamations which
were invalidated because of this. In addition, the 128-bit requirement was
stated in the RFP; however, the law itself, i.e., RA 9369 and the pertinent
laws and rules referred to therein, did not specify what kind of system will be
used to generate these signatures. Ultimately, there was no violation of the
law. What merely transpired was a failure to comply with a specification made
by the COMELEC. Even so, the functional equivalent of that specification is, to
my mind, sufficient compliance with what RA 9369 requires.
As
regards the demand for the use of a third-party generated digital signature, it
must be noted that this is not specifically required by law. The COMELEC only
decided to resort to this as an additional security measure; however, it was
discontinued. This alteration was due in part to COMELECs concern that
providing each BEI member with his or her own digital signature would leave the
success of transmission reliant on the attendance of all BEI members.[139]
As shown in the report of the
Petitioners
point out that the SJFT, during the investigation it conducted, was not able to
find any digital signature in the PCOS machines. The reason for this was shown
in the report of the SLI Global Solutions which explained that proving the
existence of the digital certificates could not have been accomplished without
the source code examples of how the certificates were generated and used.
Smartmatic-TIMs representatives and the SJFT were not able to view the digital
certificates during the forensic analysis, because they did not have access to said
source code examples.[141]
Again, the fact that they were unable to view the digital signature is merely
because they did not have a source code sample on how these are generated. The
existence of the source code sample is a prerequisite to the finding of the
digital signatures sought. To reiterate, if the SJFT and SLI Global Solutions
had the necessary source code during their analysis of the PCOS machine, the
digital signatures would have been detected. This is not a defect in the AES
system, nor is it correct to say that there were definitely no digital
signatures used. This is a simple case of not having the equipment or
information necessary to find what was being sought. Definitely, it is
incorrect to attribute this problem to the AES and, worse, to nullify the sale
on this ground.
The complaints regarding the AES
notwithstanding, it can be reasonably said that the 2010 elections were fairly
successful. The speed by which COMELEC announced the results and proclaimed the
winning candidates, juxtaposed with the minimal laments about dagdag-bawas, is an indication of this
success. The problems encountered during
the implementation of this pilot system are but natural incidents extant in
every new scheme, as in this case. Shortcomings have been identified, problems
have been addressed, and lessons are learned. It is but proper to give the AES another
chance, especially when the COMELEC and Smartmatic-TIM have been continuously
identifying and correcting problems in the system. To invalidate the sale with
problems and glitches would not only put to naught the efforts made by these
two entities who have been exerting so much efforts in improving the system for
the upcoming 2013 elections, but would also put the coming elections at risk of
not being automated. This is not to say, however, that we should stop all
efforts to seek better technologies if the circumstances so warrant. Owing to the
time pressure and the budgetary constraint, COMELEC did not have the luxury of
choice. The situation compelled COMELEC to ultimately procure the PCOS machines
and allied paraphernalia for it to be able to execute its mandate under the law
to have automated elections for the coming years. We cannot fault the COMELEC
for doing that. With a positive general feedback in the 2010 automated
elections, the elimination of the dagdag-bawas
scheme which used to haunt the electoral process in our country, the increased
number of youth voters during the 2010 elections, among others, the AES truly deserves
another chance at the 2013 elections. In the words of the CAC itself, We
should use the valuable experience we have gained from this milestone exercise
to move the country forward instead of backward.
ACCORDINGLY, I vote to DISMISS the separate petitions insofar as each seeks to declare the
assailed deed of sale as null and void.
I also vote to lift the TRO dated April 24, 2012.
PRESBITERO
J. VELASCO, JR.
Associate Justice
[1] G.R. Nos. 201112, 201127 and 201413
are petitions for certiorari, prohibition and mandamus, while G.R. No. 201121
is a petition for certiorari and prohibition.
[2]
G.R. No. 188456, September 10, 2009, 599 SCRA 69.
[3] An
Act Amending RA 8436, entitled An Act Authorizing the Commission on Elections
to Use an Automated Election System in the May 11, 1998 National or Local
Elections and in Subsequent National and Local Electoral Exercises, to
Encourage Transparency, Credibility, Fairness and Accuracy of Elections,
Amending for the Purpose Batas Pambansa Blg. 881, as Amended, [RA] 7166 and
Other Related Election Laws, Providing Funds therefor and for Other Purposes.
[4] CAC Post-Election Report on the Use
of the AES in the 2010 National and Local Elections, p. 1.
[5] CAC is a creation of RA 9369 tasked,
inter alia, to recommend the most
appropriate, applicable and cost-effective technology to be applied to the AES.
It is composed of the Chairperson of the Commission on Information and
Communications Technology and one member each from the Department of Education,
Department of Science and Technology and three members representing ICT
professional organizations.
[6] Rollo (G.R.
No. 201112), p. 481.
[7]
[8]
[9] Annex 3, Consolidated Comment of respondent COMELEC.
[10] Then Commissioner Augusto Lagman and
Commissioner Christian Lim dissented.
[11] Annex 5, Consolidated Comment of respondent COMELEC.
[12] Annex 14, Consolidated Comment of
respondent Smartmatic-TIM.
[13]
Said provision reads: This Contract and its Annexes may be amended by mutual
agreement of the parties. All such amendments shall be in writing and signed by
the duly authorized representatives of both parties.
[14] An Act Providing for the
Modernization, Standardization and Regulation of the Procurement Activities of
the Government and for Other Purposes.
[15] Integrated Bar of the Philippines v. Zamora,
G.R. No. 141284, August 15, 2000, 338 SCRA 81; citing Baker v. Carr, 369 U.S. 186.
[16]
[17]
See David v. Macapagal-Arroyo, G.R.
Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006,
489 SCRA 161.
[18] Abaya v. Ebdane, G.R. No. 167919, February
14, 2007, 515 SCRA 720.
[19]
Supra note 17.
[20] Supra note 2.
[21] Chua Huat v. CA, G.R. Nos. 53851 & 63863, July 9, 1991, 199 SCRA 1.
[22] G.R. Nos. 166910, 169917, 173630
& 183599, October 19, 2010, 633 SCRA 470, 494.
[23] Riano, Civil Procedure 36-37 (2009).
[24] Quesada v. DOJ,
G.R. No. 150325, August 31, 2006, 500 SCRA 454.
[25] Flaminiano v. Adriano, G.R. No. 165258, February 4, 2008, 543 SCRA 605.
[26] Bagabuyo v. COMELEC, G.R. No. 176970, December 8, 2008, 573 SCRA 290.
[27]
Cited in Chamber of Real Estate and Builders Associations,
Inc. (CREBA) v. Secretary of Agrarian Reform,
G.R. No. 183409, June 18, 2010, 621 SCRA 295, 309-310.
[28] G.R. Nos. 146184-85, January 31, 2008,
543 SCRA 269.
[29] Agan v. Philippine International Air Terminals Co., Inc., G.R. No. 155001, May 5, 2003, 402
SCRA 2003.
[30] 17 C.J. S. p. 1042, Sec. 15,
Contracts.
[31] Rollo (G.R.
No. 201112), pp. 721-722, 725-726.
[32] G.R.
No. 124791, February 10, 1999, 302
SCRA 718.
[33] Eulogio v. Apeles, G.R. No. 167884, January 20, 2009, 576 SCRA 561.
[34]
[35] Art. 1306 of the Civil Code provides
that [T]he contracting parties may establish such stipulations, clauses, terms
and conditions as they deem convenient, provided they are not contrary to law,
morals, good customs, public order, or public policy.
[36] Good v. Evans,
178 S.W. 2d 600, 296
[37]
[38] Supra note 29.
[39] Sec. 48.2, Rule XVI of the IRR of RA
9184: In accordance with Section 10 of this IRR-A, as a general rule, the
procuring entity shall adopt public bidding as the general mode of procurement
and shall see to it that the procurement program allows sufficient lead time
for such public bidding. Alternative methods shall be resorted to only in the highly
exceptional cases provide for in this Rule.
[40] Manual of Procedures for the
Procurement of Goods and Services, p. 81.
[41] Blacks Law Dictionary 1339 (9th ed. for the iPhone/iPad/iPod touch, Version 2.1.0 [B112136]).
[42] The Whereas clause of the 2009 AES Contract defines Component 1 of the AES, viz:
Component 1: Paper Based Automated Election System (AES)
1-A. Election Management
System
1-B. Precinct-Count Optical Scan (PCOS) System
1-C. Consolidation/Canvassing System (CCS)
This is consistent with the items/goods listed under Annex E of the Deed of Sale that include:
1.1 PCOS Software
a.
b. PCOS application
1.2 PCOS Hardware
a.
b. PCOS machines
c. modems
1.3 Canvassing System
a. Canvassing units
b. Central servers
1.4 Servers
a. KBP servers for dominant majority and minority parties, accredited citizens arms
b. Servers National BOC-COMELEC
c. Servers National BOC-Congress
d. Printers (canvassing)
e. Modems
f. Public Website (for publication of canvassing results)
g. Back-up data center.
[43] Computer Terminology Glossary, Publish This for iBooks.
[44] Firmware means the permanent instructions and data programmed directly into circuitry of read-only memory for controlling the operation of the machines. (Article 1.10, AES Contract dated July 10, 2009)
[45] Intellectual Property Code, Sec. 171.4.
[46]
[47]
Justice Brions Concurring Opinion, p. 24.
[48] Blacks Law
Dictionary, 9th
Ed., for the iPhone/iPad/iPOd touch. Version: 2.1.0(B12136), p. 223.
[49]
[50] An established value that persists through the entire application or program. (Glossary of Programming Technology, Publish this for iBook, p. 11.) In this case, the election definition pertains to the definition of the contests and questions that will appear on the ballot for a specific election (Voting System Performance Guidelines Volume 1, Appendix A: Glossary, p. A-9).
[51] Meaning the Election Event Designer whose primary functions include the creation of all ballot styles used in the elections, creation of the data that will be used by each individual PCOS in each voting jurisdiction, and creation of the accompanying iButtons for the PCOS. (Final Certification Test Report, COMELEC AES 2011 Voting System prepared by Global Solutions, p. 21)
[52] The iButton is a gadget separate from the PCOS machine, which serves the following functions: (a) starts the PCOS machine (together with a CF card and 8-digit PIN); (b) digitally transmit ERs; (c) close the machines (together with the 8-digit PIN). It also contains the digital certificates (a 1,024-bit key RSA algorithm) necessary to generate digital signatures (private key). TSN, May 8, 2012 Oral Arguments, pp. 149-150, 165-166.
[53] Final Certification Test Report, COMELEC AES 2011 Voting System prepared by Global Solutions, p. 20.
[54]
[55] Proprietary software is usually
sold for profit, consists only of machine readable code, and carries a limited
license that restricts copying, modification and redistribution. A user may
usually backup any copy for personal use; but if the software is sold or given
away, any backup copies must be passed on to the new user or destroyed. Blacks Law Dictionary, supra note 41.
[56] Over which Smartmatic has a license
from Dominion Voting System.
[57] TSN, May 8, 2012, pp. 72-73.
[58]
[59]
[60]
Under the AES, the lease price of Component I of the AES (which is the subject
of the OTP) is PhP 6.8 billion. Since the RFP provided that the purchase price
cannot exceed 50% of the lease price, the price ceiling for the purchase of the
goods subject of the OTP from Smartmatic-TIM is set at PhP 3 billion. This
price was further lowered to PhP 2.1 billion in the OTP between respondents.
The price is further reduced by PhP 24 million (the amount paid for the PCOS
units purchased for the ARMM elections) and another PhP 272 million for lost,
missing, and unserviceable goods and equipment. See Annex E-1 of the Deed of
[61] Justice Villaramas Opinion, p. 36.
[62] COMELECs Consolidated Comment, pp. 1-12.
[63] Constitution, Art. VI, Sec. 25.
[64]
[65] Taking into consideration that the Resumption of the Second Regular Session of the 15th Congress is on July 23, 2012 <http://www.congress.gov.ph/legisinfo/index.php?l=calendar ®ses=second>.
[66] Constitution, Art. VI, Sec. 26(2).
[67] House Rules of the House of Representatives, Sec. 44.
[68]
[69]
[70] Constitution, Art. VI, Sec. 26(2).
[71] Civil Code, Art. 2.Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided x x x.
[72] Notably, this mirrors the time spent in the preparation of the supplemental budget for the 2010 automated elections which covered the first quarter of 2009, or from January to March 2009. (HBN 5715, which was the precursor of RA 9252 which gave a supplemental budget of P11.3 B for the automation of the 2010 elections, was First Read in the House of Representatives on January 19, 2009, transmitted to the Senate on March 5, 2009 and finally signed into law on March 23, 2009. (House of Representatives Journal No. 42, January 19, 2009, p. 10 <http://www.senate.gov.ph/lis/bill_res.aspx?congress=14&q=HBN-5715> (visited June 6, 2012).
[73] SECTION
46. Appropriation Before Entering into Contract.
1. No
contract involving the expenditure of public funds shall be entered into unless
there is an appropriation therefor, the unexpended balance of which, free
of other obligations, is sufficient to cover the proposed expenditure; and
2. Notwithstanding
this provision, contracts for the procurement of supplies and materials to be
carried in stock may be entered into under regulations of the Commission
provided that when issued, the supplies and materials shall be charged to the
proper appropriations account.
SECTION 47. Certificate Showing Appropriation to
Meet Contract. Except in the case of a contract for personal service,
for supplies for current consumption or to be carried in stock not exceeding
the estimated consumption for three (3) months, or banking transactions of
government-owned or controlled banks, no contract involving the expenditure of public funds by any government
agency shall be entered into or authorized unless the proper accounting
official of the agency concerned shall have certified to the officer entering
into the obligation that funds have been duly appropriated for the purpose and
that the amount necessary to cover the proposed contract for the current
calendar year is available for expenditure on account thereof, subject
to verification by the auditor concerned. The certificate signed by the proper
accounting official and the auditor who verified it, shall be attached to and
become an integral part of the proposed contract, and the sum so certified
shall not thereafter be available for expenditure for any other purpose until
the obligation of the government agency concerned under the contract is fully
extinguished.
SECTION 48. Void
Contract and Liability of Officer. Any contract entered into contrary to the requirements of the two (2)
immediately preceding sections shall be void, and the officer or
officers entering into the contract shall be liable to the Government or other
contracting party for any consequent damage to the same extent as if the
transaction had been wholly between private parties.
[74] RA 9184, Implementing Rules and Regulations Part A, Rule VI, Sec. 17.
[75]
[76]
[77]
[78] Through its Bids and Awards Committee.
[79] Annex C to the Implementing Rules and Regulations Part A of RA 9184, as amended, entitled Period of Action on Procurement Activities.
[80] RA 9184, Implementing Rules and Regulations Part A, Rule IX, Sec. 30.4: The [COMELEC] BAC shall x x x evaluate the technical merits of the proposals received from eligible bidders vis--vis the required performance standards. A meeting/discussion shall then be held by the BAC with those eligible bidders whose technical tenders meet the minimum required standards stipulated in the bidding documents for purposes of drawing up the final revised technical specifications/requirements of the contract. Once the final revised technical specifications are completed and duly approved by the [COMELEC] BAC, copies of the same shall be issued to all the bidders identified in the first stage who shall then be required to submit their revised technical tenders, including their price proposals in two (2) separate sealed envelopes.
[81] RA 9184, Implementing Rules and Regulations Part A, Rule X, Sec. 34.2.
[82]
[83]
[84] The 3 to 4-month period of competitive bidding is similar to the bidding made for the 2010 elections which started on March 18, 2009, when the COMELEC approved the RFP/TOR, and culminated on July 10, 2009, when the AES Contract was signed between respondents.
[85] Marcelino v.
Cruz, Jr., No.
L-42428, March 18, 1983, 121 SCRA 51.
.
[86] RA 8436, as amended, Sec. 6. Minimum System Capabilities. The
automated elections system must at least have the following functional
capabilities:
(a) Adequate security against
unauthorized access;
(b) Accuracy in recording and
reading of votes as well as in the tabulation, consolidation/canvassing,
electronic transmission, and storage of results;
(c) Error recovery in case of
non-catastrophic failure of device;
(d) System integrity which ensures
physical stability and functioning of the vote recording and counting process;
(e) Provision for voter verified
paper audit trail;
(f) System auditability which
provides supporting documentation for verifying the correctness of reported
election results;
(g) An election management system
for preparing ballots and programs for use in the casting and counting of votes
and to consolidate, report and display election result in the shortest time
possible;
(h) Accessibility to illiterates and
disabled voters;
(i) Vote tabulating program for
election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping,
storing and archiving of physical or paper resource used in the election
process;
(m) Utilize or generate official
ballots as herein defined;
(n) Provide the voter a system of
verification to find out whether or not the machine has registered his choice;
and
(o) Configure access control for
sensitive system data and function.
[87] Supra
note 2.
[88] Heirs of Tabia v. Court of Appeals, G.R. Nos. 129377 & 129399, February 22, 2007,
516 SCRA 431; cited in Riano, Civil
Procedure 316 (2009).
[89]
[90] In the TWG Consolidated report on
the evaluation of Smartmatic-TIMs proposed systems for the 2010 elections, it
was stated that the actual systems evaluation test, which Smartmatic-TIMs
system passed, covered the following:
1. Manual feeding of ballot into the
PCOS machine;
2. PCOS scanning speed;
3. Fully-integrated single device;
4. Scanning resolution;
5. User authentication with multi-user
access levels;
6. Electronic display;
7. Error handling procedures;
8. Detection and rejection of fake and
spurious ballots;
9. 2-side scanning in one pass in
different orientations;
10. Authenticity of the ballot;
11. Pre-printed names on the ballot;
12. 300-name accommodation on each side
of the ballot with minimum font size of 10;
13. Full shade mark recognition;
14. Partial shade mark recognition;
15. Check mark recognition;
16. X mark recognition;
17. Pencil and ink marks recognition;
18. Error recovery features in a system
shutdown simulation;
19. Report-generation capability.
[91] TSN, May 8, 2012, pp. 48-49.
[92] Roque, Jr.,
supra note 2.
[93]
SLI Global Solution, formerly Systest Lab, is a Denver Colorado Voting System
Test Laboratory accredited by the US Federal National Institute of Standards
and Technology; see TSN, May 8, 2012,
pp. 13-14.
[94] CAC Post-Election Report, p. 34.
[95] TSN, May 8, 2012, p. 148.
[96] For everyday printing (not photos), draft mode, which is quicker and uses less ink, will give you what you need. This Draft setting lets you print faster and use less ink. The print color will be lighter, but this mode is perfect for drafts and everyday printing. From <http://www.hp.com/united-states/consumer/digital_photography/print_better_photos/tips/10-tips.html>.
[97] Final Report, The
[98]
[99] All primary CF cards that had
already been distributed were recalled to the configuration facility in Laguna.
By using 18,000 spare CF cards that were already on hand at the configuration
facility, purchasing 30,000 new cards in Hong Kong and
[100]
RA 9369, Sec. 2(12). Source codeHuman readable instructions that define
what the computer equipment will do.
[101]
[102] Commissioner
Augusto Lagmans Dissenting Opinion to COMELEC Resolution No. 9373, p. 13.
[103] CAC Post-Election Report, p. 22.
[104]
[105]
[106]
Request for Proposal (also known as Terms of Reference or TOR) for Solutions,
Terms & Conditions for the Automation of the May 10, 2010 Synchronized
National and Local Elections, p. 41.
[107]
[108]
SBAC System Evaluation Consolidated Report and Status Report on the
Post-Qualification Evaluation Procedures dated June 1, 2009, Item 10.
[109] SLI Global Solutions, Final
Certification Test Report, p. 29.
[110]
Report of the TWG-RMA, p. 20.
[111]
[112] Final Report, The
[113]
[114]
Final Report, The
[115]
Final Certification Report, SLI Global Solutions; SBAC-TWG Post-Qualification
Tests Report.
[116]
Also reflected in the Final Report of the
[117] TSN,
May 8, 2012, p. 159.
[118] See <http://votingmachines.procon.org/>.
[119] Audit trail
for direct-recording equipment: paper
printout of votes cast, produced by direct-recording electronic (DRE) voting
machines, which election officials may use to crosscheck electronically
tabulated totals. (Voting System Performance Guidelines Volume 1, Appendix A:
Glossary, p. A-4)
[120]
CAC Post-Election Report, p. 6.
[121] TSN,
May 8, 2012, p. 158.
[122]
Final Report, The
[123] TSN,
May 8, 2012, p. 146.
[124] Digital
signature: An asymmetric key operation where the private key is used to
digitally sign an electronic document and the public key is used to verify the
signature. Digital signatures provide data authentication and integrity
protection. (Voting System Performance Guidelines Volume 1, Appendix A:
Glossary, p. A-8)
[125] Electronic signature refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a
person and attached to or logically associated with the electronic data
message or electronic document or any
methodology or procedures employed or adopted by a person and executed or
adopted by such person with the intention of authenticating or approving an
electronic data message or electronic document. E-Commerce Act (RA 8792),
Implementing Rules and Regulations, Sec. 6(g).
[126] A.M. No. 01-7-01-SC, Re: Rules on Electronic Evidence,
Rule 2, Sec. 1(a) Asymmetric or public cryptosystem means a system capable of
generating a secure key pair, consisting of a private key for creating a
digital signature, and a public key for verifying the digital signature; Cryptography: Discipline that embodies the principles, means, and
methods for the transformation of data in order to hide their semantic content,
prevent their unauthorized use, prevent their undetected modification and
establish their authenticity. (Voting System Performance Guidelines Volume 1,
Appendix A: Glossary, p. A-8)
[127] Private key:
The secret part of an asymmetric key pair that is typically used to digitally
sign or decrypt data. (Voting System Performance Guidelines Volume 1, Appendix
A: Glossary, p. A-15)
[128] Public key: Public part of an
asymmetric key pair that is typically used to verify digital signatures or
encrypt data (Voting System Performance Guidelines Volume 1, Appendix A:
Glossary, p. A-15)
[129] Rules on Electronic Evidence, Rule 2, Sec. 1(e).
[130] ARTICLE V - PROCEDURES OF VOTING, COUNTING OF VOTES AND
TRANSMISSION OF PRECINCT RESULTS
x x x x
Section 40. Counting of
ballots and transmission of results; Procedure. (Renumbered) (As
Revised)
a) At the end of voting and before the start of counting of votes, the
Chairman shall place the iButton security key on top of the iButton security
key receptacle and apply slight pressure thereon. Remove the iButton security
key from its receptacle, after which the PCOS will display the Main Menu;
b) Press the CLOSE VOTING option in the Main Menu;
c) The screen will display a message ARE YOU SURE YOU WANT TO CLOSE
VOTING? NO MORE BALLOTS WILL BE ACCEPTED AFTER THIS. Select YES option;
d) The PCOS will request for the PIN of the poll clerk who will then
enter his PIN and press ENTER. The PCOS will validate the PIN and displays a
message PIN ACCEPTED. The PCOS will request for the second PIN from the third
member who will then enter his PIN and press ENTER. The PCOS will validate
the PIN and displays a message PIN ACCEPTED.
e) The screen will display a message POLL IS BEING CLOSED PLEASE WAIT
followed by another message VOTING HAS BEEN CLOSED NO MORE BALLOTS WILL BE
ACCEPTED BY THIS PCOS;
f) Thereafter, the PCOS shall automatically count the votes and
immediately display a message WOULD YOU LIKE TO DIGITALLY SIGN THE
TRANSMISSION FILES WITH A BEI SIGNATURE KEY?, with a YES or NO option x x x.
[131] Smartmatic-TIMs Consolidated
Comment, p. 54.
[132]
Hash values are indices that match data sets in an array (such as filled-in
oval marks to indicate candidate names).
[133] TSN,
May 8, 2012, pp. 150-151.
[134] Rules on Electronic Evidence, Rule 2, Sec. 1(f) Digitally signed refers
to an electronic document or electronic data message bearing a digital
signature verified by the public key listed in a certificate.
[135]
COMELECs Consolidated Comment, p. 115.
[136] Rules on
Electronic Evidence,
Rule 2, Sec. 1(c) Certificate means an electronic document issued to support
a digital signature which purports to confirm the identity or other significant
characteristics of the person who holds a particular key pair.
[137] Request for Proposal for Solutions,
Terms and Conditions for the Automation of the May 10, 2010 Synchronized
National and Local Elections, p. 17.
[138] TSN,
May 8, 2012, p. 150.
[139]
Final Report, The
[140]
[141]
COMELECs Consolidated Comment, p. 116.