The vote was unanimous: 15-0. That was as definitive and categorical as the Supreme Court could get in junking the agreement between the Commission on Elections and Smartmatic-Total Information Management Corp. for the supposed repair and maintenance of 80,000 precinct count optical scan machines to be used for the 2016 elections. No ifs, ands or buts about it, the justices are saying—the P240-million deal is unsalvageable, shot through with fundamental infirmities as to render it illegal and void.
Associate Justice Estela M. Perlas-Bernabe, who wrote the decision, said the Comelec “failed to justify its resort to direct contracting with Smartmatic-TIM,” thus violating the conditions set by the Government Procurement Reform Act on when the government may dispense with public and competitive bidding in official transactions. The reason cited by the Comelec for its Jan. 30 deal—that it waived public bidding and went into direct contracting with Smartmatic because of lack of time, and anyway it was merely taking advantage of Smartmatic’s “extended warranty offer” on the machines—was earlier assailed by the Integrated Bar of the Philippines as contrary to public policy. A “tight time schedule” is not among the three conditions listed in the law for resorting to direct contracting, noted the IBP, so for the Comelec to invoke the argument to justify its anomalous deal with Smartmatic was “nothing but a superficial and shallow excuse.”
To which the high court agreed. “Its claims of impracticality were not supported by independently verifiable data and its perceived ‘warranty extension’ is, in reality, a circumvention of the procurement law,” the high court said.
Score one for the restoration of some sanity in the election system, to which the Comelec under its former chair, Sixto Brillantes, had ironically done much damage with its bullheaded—some say suspicious—insistence on transacting only with Smartmatic for its automated poll requirements. The fact that the Jan. 30 deal didn’t go through competitive bidding wasn’t its only flaw; it was signed by Brillantes three days before his official retirement from office, raising the possibility that the contract was a midnight deal. Recall, too, that when various sectors objected to the highly irregular way that the Comelec had pursued the contract, Brillantes was quick to dismiss them with a memorably hubristic response: “Despite all of the attacks, I still signed the deal with Smartmatic. I did not have to sign it but I signed it… They kept on attacking us, so I signed it.”
Getting swatted down by the high court must be humiliating for any government official, but there is some satisfaction to be had by the public in seeing that august collective wisdom come down unanimously on the arrogant, autocratic governance that Brillantes had brought to his stint in the Comelec, and exemplified most blatantly in his partiality toward Smartmatic. By stubbornly sticking to his favored supplier and refusing to look at other more advantageous and viable options, Brillantes may have painted the Comelec into a corner, effectively depriving it of time, flexibility and bargaining cache to look for a better automation partner for the 2016 elections. And because he merrily left office three days after signing the contract with Smartmatic, it has become the giant headache of whoever his successor would be (and here President Aquino needs to step in by appointing a new Comelec chair soon) to put together another system in time for the looming polls.
The Comelec should take the cue from that 15-0 decision; appealing for reconsideration would only be an unconscionable waste of time, given the shrinking window in which the poll body has to enact a Plan B to ensure that the 2016 elections would be as honest, orderly and transparent as it is mandated to implement, and which is the least that the public expects. Enough of this alarmist talk that the Supreme Court’s decision would result in a return to cumbersome, more-prone-to-cheating manual counting, or worse, that the elections might not even push through. That is a completely unacceptable scenario, and should not even be given serious thought.
If the Comelec wants to redeem itself in the wake of this legal debacle, it needs to do only two things: One, forget Smartmatic-style transactions that only get it into legal trouble, and two, do its job well. Clean elections should be its own best reward.